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National Liability and Fire Insurance Company v. Allen5/4/2000
t.
The Court does not explain how it would rule if a witness becomes unavailable after the Commission hearing and the witness's prior testimony contains matters that could have been excluded had the Texas Rules of Evidence applied to Commission proceedings. If the Court is of the view that objections could not be raised in court if they were not raised at the Commission, then it would be more important for parties to have counsel at Commission proceedings. As noted above, I do not think that is what the Code contemplates. But, if the Court agrees with me that when a witness is unavailable, section 410.306 allows objections to be raised in court proceedings even if no objection was made at the Commission hearing, then the Court's construction of the Code would lead to what it says is "the anomalous and cumbersome result of trial courts having to retroactively apply the evidentiary rules to evidence offered at the Commission to determine whether that evidence is admissible at trial." __ S.W.3d at __. The reasons the Court has given for rejecting my construction of section 410.306 are inconsistent with one another, and accordingly, it would seem that the Court has not carefully thought through its views about the statute.
The trial court's erroneous legal conclusion about the meaning of section 410.306 was an abuse of discretion. See Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996). Because the exclusion of the testimony precluded the jury from considering the only testimony indicating that Allen did not give timely notice, the error was harmful. I would reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings.
Priscilla R. Owen, Justice
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