In Condit v. Gonzales, No. 13-04-426-CV, 2006 Tex. App. Lexis 8472 (Tex. App.–Corpus Christi Sept. 28, 2006), a lawyer appealed from a sanctions order arising out of a dispute over custody to a decedent’s computers. After the trial court granted summary judgment in favor of Judge Lisa Gonzales on the basis of judicial immunity, it granted sanctions against Bradford M. Condit (“Condit”), attorney for Mary “Judy” Dancer Perring (“Perring”), former wife of the deceased, Gordon N. Dancer (“Dancer”). Judge Gonzales is the Presiding Judge of County Court at Law No. 2 in Nueces County, Texas.

Background.

On September 29, 2003, clients of Dancer, who had recently died, and his tax and management consulting business filed an application for temporary injunction against Perring, Dancer’s former secretary Darlene McCormack, and the property owner Landlord Resources, Inc. They sought to enjoin the defendants from entering Dancer’s office and removing any files, documents or electronic files or documents, or from interfering with their right to possession. Judge Gonzales was the presiding judge in this injunction action.

On October 1, 2003, Judge Gonzales signed an agreed order for temporary injunction, which stated, in relevant part, as follows:

1. The Plaintiffs and/or their representatives [and] Defendant Mary “Judy” Dancer [Perring] or [her] representative will meet at 3:30 p.m. on October 1, 2003 at the accounting offices of Gordon Dancer . . . for the purpose of removal of Plaintiffs’ files, accounting, tax and other business records together with any tax or accounting work in progress.

2. Any disputes between plaintiffs and Defendant Dancer [Perring] as to Plaintiff’s right of possession to any particular documents or record, such document or record shall be taken into possession by an attorney of record and delivered to this court for later disposition upon motion and hearing or agreement by the parties.

3. Defendants Judy Dancer [Perring] and Darlene McCormack are enjoined from removing, destroying, copying, altering or concealing any of Plaintiffs’ files, accounting, tax and other business records together with any tax or accounting work in progress that are later discovered upon any further inventory of Gordon Dancer’s possessions.

An entry on Judge Gonzales’s October 3, 2003, civil docket in the injunction action indicates that on that day “Mark DeKock with Burkett’s office appeared w[ith] documents and computer towers, [t]elephone conference w[ith] Brad Condit, David Burkett and Mark DeKoch; [d]ocuments & towers held by court subject to hearing.” At the sanctions hearing, Condit confirmed that he participated in this telephone conference and testified that during the conference he informed Judge Gonzales that the property was from Dancer’s office, no interpleader had been filed, and she should not take possession of it. According to Condit, Judge Gonzales said that she was going to take possession of it and that either attorney/plaintiff Burkett or a lawyer from his office should file an interpleader sometime that afternoon. See Tex. R. Civ. P. 39 (providing that the court shall order that a person needed for just adjudication be made a party). A hearing to determine matters related to the disputed property was scheduled for October 6, 2003.

At approximately 4:00 p.m., on October 3, 2003, Reece Rozelle, who had been Dancer’s attorney in his divorce action, filed an interpleader petition in the injunction action. See Union Gas Corp. v. Gisler, 129 S.W.3d 145, 153 (Tex. App.–Corpus Christi 2003, no pet.) (“The purpose of interpleader is to allow an innocent stakeholder facing rival claims to let the courts decide who is entitled to the fund and thus avoid the peril of acting as judge and jury itself.”). In his petition, Rozelle asserted that he had reasonable grounds to anticipate rival claims to disputed property that included two computer towers and miscellaneous life insurance documents by persons entitled to be administrators of Dancer’s estate, that the rival claimants were persons representing Perring and individuals claiming to represent the estate or community interest in the estate, that it was believed that the property may contain information regarding qualification of the administrator, and that Rozelle had been threatened with civil and criminal action for not turning over the property to one rival. The petition indicated that the court had possession of the disputed property that was delivered to the court earlier in the day. See id. at 152 (explaining that an interpleading party is entitled to interpleader relief if the following elements are met: “(1) he is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) he has not unreasonably delayed filing his action for interpleader, and (3) he has unconditionally tendered the fund or property into the registry of the court.”). Rozelle prayed that the court set his petition for hearing and, after the hearing, sign an order discharging him from the suit, enjoin the rival claimants from taking action against him, and award him costs.

In his second amended interpleader petition filed October 15, 2003, Rozelle asserted the following:

Interpleader has been advised that more than one person may seek appointment as the representative of the estate of Gordon Dancer. Interpleader additionally has been informed that a Last Will and Testament was likely expected naming Vernon Nelson as Executor. The probate code clearly gives the decedent’s personal representative the right and obligation to gather the decedent’s assets. Furthermore, the Probate Code provides that any person who seeks appointment as an administrator may be disqualified from service by the Court if the Court finds that person “unsuitable”. Interpleader alleges that information on the computers’ hard drives may render Mary Dancer unsuitable as administrator. Upon information and belief, Interpleader believes the hard drive of the computer contains assertions that Mrs. Dancer desired to have the decedent beat up and that if he died she would be a rich widow. Therefore, there is clearly a potential conflict of claims to these computers without scrutiny by the probate court for matters of her “suitability” would risk destroying such evidence. Offers to Ms. Dancer’s attorney to allow copying of the computer data were refused. Interpleader and his client were additionally threatened with criminal and civil liability by Mary Dancer while at the same time being asked by a potential administrator or executor to preserve the property.

According to Judge Gonzales, the hearing was scheduled so that she could attempt to determine who had the right to possession of the computer towers and miscellaneous life insurance documents as directed by the October 1st temporary injunction order. However, on October 6th, before the scheduled hearing, Condit filed a motion to disqualify/recuse Judge Gonzales. The motion asserted that, pursuant to rule 18b of the Texas Rules of Civil Procedure, “because of collateral proceedings before a governmental investigatory commission, the nature of which is confidential, the current judge’s impartiality might be reasonably questioned,” see Tex. R. Civ. P. 18b(2)(a), and that “the judge has a direct adverse legal interest as to a party in this case.” See id. at Rule 18b(1)(b) & (2)(b), (e), (f)(ii), (f)(iii). In response to the motion to recuse, Judge Gonzales informed all parties at the hearing that she had decided not to recuse herself and, without stating that there was good cause for further action taken, had signed an order referring the case to Judge Darrell Hester, Presiding Judge of the Fifth Administrative Judicial District, to make that determination. See id. at Rule 18a(d). Based on this decision, Judge Gonzales informed Condit that she was unable to do anything further with the case and that the matters regarding the property at issue should be considered by another judge. Thereafter, Judge Hester assigned the case to Judge Martin Chiuminatto.

On October 8, 2003, when Condit filed his client’s original answer generally denying plaintiffs’ claims, he also filed her crossclaim and counterclaim against Rozzell, among others, for invasion of privacy, conversion and conspiracy to commit theft under the Texas Civil Liability Theft statute. See Tex. Civ. Prac. & Rem. Code Ann. § 134. This same pleading named Judge Gonzales as a defendant and asserted that she was “in possession of personal property that was illegally taken from Plaintiff Mary Dancer’s [Perring’s] deceased husband’s office. Defendant Gonzales is and has exercised control and possession of it, such possession and control lies exclusively with Mrs. Dancer [Perring], Defendant Gonzales not having any legal right to possession.” Judge Gonzales filed an answer and supplemental answer generally denying the claims, asserting the affirmative defense of immunity, and cross-claiming or counterclaiming for sanctions.

On March 15, 2004, Judge Gonzales moved for summary judgment based on the affirmative defense of judicial immunity asserting that she was “entitled to summary judgment because she was immune, as she was acting in her official capacity at all times with respect to the underlying case at issue.” On that same day, Judge Gonzales filed a motion for sanctions, later amended on April 23, 2004. In her motion she alleged that Condit had filed frivolous and groundless pleadings and that she was immune and should not have been named as a party because she was acting in her judicial capacity at all times. She urged sanctions against Condit and Perring under chapters 9 and 10 of the Texas Civil Practice and Remedies Code, see id. §§ 9.001-.014, 10.001-.006 (providing for groundless and frivolous pleadings and claims and for sanctions), and Rules 13 and 215-2b of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 13, 215-2b (providing sanctions for groundless pleadings and identifying types of sanction that can be imposed).

On April 26, 2004, Condit’s client responded to Judge Gonzales’s motion for summary judgment and filed her own summary judgment motion arguing that her claim against Judge Gonzales was filed in good faith and that there was no evidence that the claims were motivated by a “consciously [sic] doing of a wrong for a dishonest, discriminatory or malicious purpose.” See Appleton v. Appleton, 76 S.W.3d 78, 86-87 (Tex. App.–Houston [14th Dist.] 2002, no pet.).

On May 27, 2004, after considering the evidence before it, case law, and arguments of counsel, the trial court granted Judge Gonzales’s motion for summary judgment.

At the May 27, 2004 hearing, the trial court took judicial notice of all pleadings and motions on file in the case and heard evidence on Judge Gonzales’s amended motion for sanctions. In its order dated June 7, 2004, the trial court awarded sanctions against Condit pursuant to Rule 13 and § 10.01 and included the following findings in its order:

1. [T]here was a cause of action, No. 03-62094-2, filed in County Court at Law No. 2 involving disputed property which was pending at the time that [Condit] filed his Motion to Recuse [Judge Gonzales] from the case;

2. [T]here was a cause of action pending (Cause No. 03-62094-2), in County Court at Law No. 2 when [Condit], on behalf of his client, signed pleadings naming Judge Gonzales as a Defendant to the lawsuit she was presiding over;

3. [T]he pleading entitled “Defendant, Mary Dancer’s [Perring’s], Original Answer, Cross-Claim and Counter-claim” was frivolous, groundless and was brought in bad faith and for purpose of harassment;

4. [S]pecifically, [Condit] alleged that Judge Lisa Gonzales was in possession of personal property that was illegally taken from [Perring’s] deceased husband’s office. This allegation is groundless and without factual basis as, at the time Cause No. 03-62094-2 was filed, Lisa Gonzales was the presiding judge of County Court at Law No. Two;

5. [T]he pleading stating that Judge “Gonzales is and has exercised control” of such property is also groundless and without factual basis because, at the time Cause No. 03-62094-2 was filed, Lisa Gonzales was the presiding judge of County Court of Law No. Two;

6. [Condit] ignored a body of Texas case law which mandates judicial immunity from suit for official acts performed by judges;

7. [Condit] filed a pleading which was groundless in violation of Tex. R. Civ. P. 13;

8. The allegations in the pleading filed against Judge Gonzales were not warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law;

9. None of the allegations made had evidentiary support;

10. The counterclaim filed against Defendant Gonzales has no basis in fact, is not warranted by a good faith argument for the extension, modification or reversal of existing law and no good cause exists for its filing;

11. [Condit], attorney for Mary Dancer [Perring], in filing the Original Answer, Cross and Counterclaim against Judge Gonzales, filed a pleading which was frivolous in nature and offensive in character in violation of [Rule] 13 and [§] 10.001;

12. It has caused [Judge Gonzales] to incur substantial expense; and

13. [T]he conduct of [Condit is] egregious.

The trial court ordered that Judge Gonzales be awarded $15,000.00 in attorney’s fees and $811.04 in costs as sanctions. It also awarded $1,000.00 to Judge Gonzales if a motion for new trial was filed, $10,000.00 if appeal is taken to the court of appeals, $7,500.00 if a petition for review is filed with the Texas Supreme Court, $5,000.00 if briefing on the merits is granted by the supreme court, and $3,000.00 if oral argument is ordered by the supreme court. Finally, the trial court found that the evidence presented at the sanctions hearing did not implicate Condit’s client in the sanctionable conduct and denied sanctions as to her. The trial court signed the sanctions order on June 7, 2004.

Violation of § 10.001 and Rule 13.

Citing to § 10.001 of the Civil Practice and Remedies Code, the trial court’s judgment found that Condit filed a pleading that was not warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law and that none of the allegations had evidentiary support. See Tex. Civ. Prac. & Rem. Code Ann. § 10.001. It also found that the pleading was groundless pursuant to Rule 13 of the rules of civil procedure. See Tex. R. Civ. P. 13.

Section 10.004 provides “[a] court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both.” Tex. Civ. Prac. & Rem. Code Ann. § 10.004. Section 10.001 states that a person signing a motion or pleading certifies that “to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry: “ (1) the motion or pleading is not presented for an improper purpose, (2) each legal contention is warranted, (3) each factual contention is likely to have evidentiary support, and (4) each denial of a factual contention is warranted. Id. § 10.001. To prevail under chapter 10, “there must be little or no basis for the claims, no grounds for legal arguments, misrepresentation of law or facts, or legal action that is sought in bad faith.” Herring v. Welborn, 27 S.W.3d 132, 143 (Tex. App.–San Antonio 2000, pet. denied). “In imposing sanctions under this chapter, a trial court is required to specifically detail the sanctionable conduct in its order.” Rudisell v. Paquette, 89 S.W.3d 233, 238 (Tex. App.–Corpus Christi 2002, no pet.) (citing § 10.005 which mandates that “[a] court shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed”).

Similarly, Rule 13 allows a court to impose sanctions on counsel for pleadings, motions, or other papers signed and filed that are groundless and brought in bad faith or groundless and brought for the purpose of harassment. Tanner, 856 S.W.2d at 730. “‘Groundless’ for purposes of this rule means no basis in law or fact and not warranted by a good faith argument for the extension, modification, or reversal of existing law.” Tex. R. Civ. P. 13. “Generally, courts presume that pleadings and other papers are filed in good faith.” Henry v. Low, 132 S.W.3d 180, 182 (Tex. App.–Corpus Christi 2004, pet. granted) (citing Tanner, 856 at 730). “The party seeking sanctions bears the burden of overcoming the presumption of good faith in the filing of pleadings.” Id. at 183 (citing Tanner, 856 S.W.2d at 731). “In determining if sanctions are proper [under Rule 13], the trial court must examine the circumstances existing when the litigant filed the pleading.” Id. at 182-83; Rudisell, 89 S.W.3d at 237; Alejandro v. Bell, 84 S.W.3d 383, 392 (Tex. App.–Corpus Christi 2002, no pet.). “The trial court considers the acts or omissions of the represented party or counsel, not merely the legal merit of a pleading or motion.” Henry, 132 S.W.3d at 183. Rule 13 also provides: “No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.” Tanner, 856 S.W.2d at 730.

Condit complained on appeal that the trial court erred in finding that Perring’s suit violated § 10.001 and Rule 13.

Was there a nonfrivolous argument for the extension of existing law?

Relying on Herring v. Welborn, 27 S.W.3d 132 (Tex. App.–San Antonio 2000, pet. denied), Condit contended that “[w]hat the law is in the context of a judge taking possession of stolen property without a judicial proceeding being instituted is uncertain because it is new and unprecedented in legal history-just as it was uncertain whether judicial immunity cloaked a probate judge who was sued in Herring.” See id. at 144-46. Condit contended that the Herring court reversed an order awarding sanctions because of murky law and that the reasoning in Herring is substantial authority to support reversal of the sanctions order against him. The Court of Appeals disagreed:

In Herring, the appellate court vacated the trial court’s award of sanctions against a party who sued a probate county court judge who ordered the sale of land during the probate of an estate. See id. at 146. The Herring Court explained that “[our] result today does not mean that prospective litigants have license to sue trial judges. Rather, under the facts before us, in light of the trial record, and with the uncertainty that hangs over the trial court’s support for its sanctions award, monetary sanctions are not appropriate.” Id. The court in Herring based its reversal of the sanctions order on the following:

1. There was scarce evidence of the factual misrepresentations that bear heavily upon the case;

2. The sanctioned party’s interpretation of the facts might be debatable, but it is not without bases in the trial record;

3. The pleadings offered legal authority for the sanctioned party’s debatable jurisdictional arguments, although the trial court disagreed with his interpretation of case law and statute;

4. While the sanctioned party sought to stretch the law to apply to his case, the legal authority relied on was not misrepresented and offered at least a debatable argument for extending jurisdiction; and

5. Simply because the trial court correctly rejected the sanctioned party’s argument, it did not mean that the party’s actions were sanctionable.

See id. at 144. In Herring, the law was not murky as [Condit] suggests. While the Herring court was “unsure of the extent to which the trial court awarded sanctions based upon . . . judicial immunity” and noted that “judicial immunity is a defense, which would be an appropriate issue at, for example, a summary judgment hearing,” the basis for the court’s decision to reverse sanctions was because the sanctioned party’s interpretation of facts was not without basis in the trial record, his authorities offered at least a debatable argument, and his attempt at reaching a favorable result had some arguable legal basis. See id. at 144, 144 n.5.

In the present case, it is undisputed that Judge Gonzales was presiding over the temporary injunction action filed against Perring. It is also undisputed that two computer towers and the life insurance documents about which [Condit] complains were from Dancer’s office. The October 1, 2003 temporary injunction agreed order provided that “[a]ny disputes between plaintiffs and Perring as to the plaintiffs’ right of possession to any particular documents or record, such document or record shall be taken into possession by any attorney or record and delivered to this Court for later disposition upon motion and hearing or agreement by the parties.” The order also enjoined Perring from “removing, destroying, copying, altering or concealing any of Plaintiffs’ files, accounting, tax and other business records together with any tax or accounting work in progress that are later discovered upon any further inventory of Gordon Dancer’s possessions.”

The property at issue was taken to Judge Gonzales’s chambers after the order was signed. Following a phone conference regarding the challenged items in which [Condit] and Judge Gonzales participated, an interpleader action was filed. There is some question as to whether these items were discussed at the October 1st meeting of plaintiffs, defendant and their representatives; however, the property was specifically disputed when the interpleader action was filed on the afternoon of October 3rd. The property was at issue before [Condit] filed Perring’s motion to disqualify/recuse Judge Gonzales on October 6, 2003, the same day that a hearing was scheduled to determine the property issues, and before [Condit] filed his client’s claim against Judge Gonzales on October 8, 2003.

Based on the above, Herring does not support [Condit’s] arguments. Rather, Herring supports a contrary conclusion. We cannot conclude, as [Condit] asserts, that the law is uncertain under the facts of this case and its application is new and unprecedented as applied to the facts. Furthermore, we cannot conclude that [Condit’s] interpretation of facts has a basis in the trial record, that his authorities offer at least a debatable argument, and that his attempt at reaching a favorable result by suing Judge Gonzales has some arguable legal basis. Cf. id. at 144, 144 n.5.

[Condit’s] position below, and now on appeal, is based on his underlying premise that Judge Gonzales took possession of allegedly stolen property without a judicial proceeding being instituted. In the cross/counter-claim against Judge Gonzales, [Condit] asserted, on his client’s behalf, that Judge Gonzales was “in possession of personal property that was illegally taken from Plaintiff Mary Dancer’s [Perring’s] deceased husband’s office. Defendant Gonzales is and has exercised control and possession of it, such possession and control lies exclusively with Mrs. Dancer [Perring], Defendant Gonzales not having any legal right to possession.” The threshold question in this appeal is whether a judicial proceeding had been instituted, such that Judge Gonzales had authority to hold the materials in question in her chambers. Based on the facts and the discussion set out above, we conclude that such a judicial proceeding had been instituted, a judicial proceeding over which Judge Gonzales was presiding when [Condit] filed his client’s motion to recuse and her claim against Judge Gonzales. In light of the trial record and the law set out above, and with the certainty with which the trial court awarded sanctions against [Condit], we conclude that monetary sanctions were appropriate.

Was there a lack of judicial authority to act?

Condit also contended that because no pleading had been filed regarding the property before Judge Gonzales took possession of it, she had no judicial authority to act and that a subsequently filed pleading does not apply retroactively to give her that authority. The Court of Appeals rejected this argument:

In this case, the interpleader action bringing issues related to the possession of the computer towers and the insurance documents was filed before the claim against Judge Gonzales was filed. In our review of a rule 13 sanctions award, we examine the facts and circumstances as they existed at the time the suit against Judge Gonzales was filed. See Henry, 132 S.W.3d at 182-83; Rudisell, 89 S.W.3d at 237; Alejandro, 84 S.W.3d at 392. We also consider the acts of counsel, not merely the legal merit of a pleading or motion. See Henry, 132 S.W.3d at 183. Thus, although the property may have been delivered to Judge Gonzales’s chambers before the interpleader action was filed, the issues related to the possession of the computer towers and the insurance documents were properly before the court well before Condit filed his client’s pleading and motion. Thus, this argument fails.

[Condit] also cites Davis v. State, 928 S.W.2d 289, 291 (Tex. App.–Fort Worth, 1996), rev’d, 956 S.W.2d 555 (Tex. Crim. App. 1997), to support his argument that in Texas there is no such thing as “retroactive jurisdiction.” In Davis, the appellant challenged his revocation arguing that the order was void because the district judge’s order referring his cause to the magistrate was signed two days after the plea had been taken, and, thus, did not confer jurisdiction to the magistrate. See id. at 290-91. The Fort Worth Court of Appeals agreed and reversed the judgment and remanded the case to the district court. See id. at 291. However the Texas Court of Criminal Appeals concluded the error was not jurisdictional and the conviction was not void and reasoned as follows:

The district court was authorized by statute to refer this case to a magistrate and purported to do so when it signed the referral and adoption order. The error in this case concerned the process by which the district judge referred this case to its surrogate, whose acts were adopted by the trial court. Therefore, jurisdiction was not affected and the order placing Appellant on probation was not void even though a procedural irregularity arose due to the untimeliness of the referral order. This is not to say that the case was properly transferred, only that the error was not jurisdictional and the conviction is not void.

Davis v. State, 956 S.W.2d 555, 560 (Tex. Crim. App. 1997) (distinguishing the distinct concepts of jurisdiction and authority to act). Similarly, Judge Gonzales had authority to act regarding the property at issue when the interpleader action was filed. The error, if any, concerned the process by which the attorneys made the property available to Judge Gonzales. Therefore, jurisdiction was not affected even though a procedural irregularity in the delivery of the property may have occurred. See id. [Condit’s] reliance on the intermediate appellate court’s opinion in Davis is misplaced.

Accordingly, we conclude the trial court did not abuse its discretion in finding that Perring’s suit violated rule 13 of the Rules of Civil Procedure and 10.001 of the Civil Practice and Remedies Code.

Were the reasons for sanctions adequately stated?

Condit also asserted on appeal that the trial court failed to adequately state the basis of its conclusion, as required by § 10.005 and Rule 13. See Tex. Civ. Prac. & Rem. Code § 10.005 (“A court shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed.”); GTE Communications Sys. Corp. v. Curry, 819 S.W.2d 652, 654 (Tex. App.–San Antonio 1991, no writ) (setting out that Rule 13 requires the trial court to state the particulars of the good cause for imposing sanctions). The Court of Appeals rejected this argument:

Here, the trial court concluded that [Condit’s] claims against Judge Gonzales were frivolous, groundless and brought in bad faith and for purpose of harassment. Specifically, in support of its conclusions, the trial judge found that the allegation that Judge Gonzales was in possession of personal property that was illegally taken from Dancer’s office and the claim that Judge Gonzales is and has exercised control of such property were groundless and without factual basis because at the time those claims were filed Judge Gonzales was the presiding judge of County Court at Law No. 2. The trial court also found there was a cause of action filed in County Court at Law No. 2 involving the disputed property, pending at the time [Condit] filed his motion to recuse and when he signed pleadings naming Judge Gonzales as a defendant to the lawsuit over which she was presiding. The trial court also found that [Condit] ignored the body of Texas law which mandates judicial immunity from suit for official acts performed by judges and the allegations against Judge Gonzales in the motion and in the claims filed against her were not warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law. It also found that none of the allegations had evidentiary support.

Was there sufficient evidence for the amount of attorney’s fees awarded as sanctions?

Condit contended that the trial court erred in allowing attorney Thomas Nye, a witness who had not been disclosed, to testify at the sanctions hearing. Condit asserted that without this testimony from Judge Gonzales’s only witness there was no evidence to support any award of attorney’s fees. The Court of Appeals rejected this argument:

Where the judgment is not one for earned attorney’s fees but rather a judgment imposing attorney’s fees as sanctions, it is not invalid because a party fails to prove attorney’s fees. Glass v. Glass, 826 S.W.2d 683, 688 (Tex. App.–Texarkana 1992, writ denied). “When attorney’s fees are assessed as sanctions, no proof of necessity or reasonableness is required.” Miller v. Armogida, 877 S.W.2d 361, 365 (Tex. App.–Houston [1st] 1994, writ denied); see Brantley v. Etter, 677 S.W.2d 503, 504 (Tex. 1984) (per curiam) (concluding that the amount of attorney’s fees awarded as sanctions for discovery abuse is solely within the sound discretion of the trial judge and will only be set aside upon a showing of clear abuse of discretion). Therefore, even were we to conclude the trial court abused its discretion in allowing Nye, an undisclosed witness, to testify, see Tex. R. Civ. P. 193.6(a) (providing, with certain exceptions, that a party who fails to make a discovery response in a timely manner may not introduce the testimony of a witness who was not timely identified), there was no harm because the testimony is unnecessary to support the trial court’s award of attorney’s fees as sanctions. See Miller, 877 S.W.2d at 365; Brantley, 677 S.W.2d at 504. In addition, Judge Gonzales established good cause for not answering the requests for disclosure, a Rule 193.6 exception, as she was immune from suit, a defense established on summary judgment prior to the sanctions hearing. See Tex. R. Civ. P. 193.6(a)(1), (b).