In Re Dena Hall and De'Von Bankett v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 18, 2023
• Docket: 14-22-00797-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Majority and Dissenting Opinions filed April 18, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00797-CV

IN RE DENA HALL AND DE’VON BANKETT, Relators

ORIGINAL PROCEEDING WRIT OF MANDAMUS County Court at Law No. 5 Fort Bend County, Texas Trial Court Cause No. 21-CCV-069075

MEMORANDUM DISSENTING OPINION

Persisting in my view that our duty as judges is to reach a decision on the merits based on a proper record and that due process and due course of law require that this court give notice when the original-proceeding record does not comply with the Texas Rules of Appellate Procedure, I would give relators ten-days’ notice of involuntary dismissal for failure to comply with Texas Rules of Appellate Procedure 52.3 and 52.7. See Tex. R. App. Tex. R. App. P. 52.3(k)(1) (necessary contents of petition); Tex. R. App. P. 52.7(a) (requiring (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding and (2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained); Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (authorizing unsworn declarations); In re Kholaif, 624 S.W.3d 228, 231 (order), mand. dism’d, 615 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2020) (orig. proceeding).

This court has not been consistent with its handling of original proceedings in which the relators did not comply with Rule 52. Compare In re Hawkins, No. 14-22-00474-CR, 2022 WL 3973867, at *1 (Tex. App.—Houston [14th Dist.] Sept. 1, 2022, no pet.) with In re Hinton, No. 14-22-00543-CR, 2022 WL 16571199, at *1 (Tex. App.—Houston [14th Dist.] Nov. 1, 2022, no pet.) and In re Catt, No. 14-22-00583-CV, 2022 WL 11551248, at *1 (Tex. App.—Houston [14th Dist.] Oct. 20, 2022, no pet.) (Spain, J., concurring). Kholaif is this court’s controlling precedent, but even if the court ignores that, the potential appearance of subjective decision-making in the absence of an improper original-proceeding record is unfortunate.1

1 A positive step forward is the checklist for original proceedings that has been posted on the court’s website to assist parties filing an original proceeding.

2 I dissent from the court’s failure to provide notice and an opportunity to cure. I express no opinion on the merits of the petition for a writ of mandamus.

/s/ Charles A. Spain Justice

Panel consists of Justices Spain, Poissant, and Wilson (Spain, J., dissenting).