In Re: Energy Transfer Lp, Energy Transfer MARKETING & TERMINALS, L.P., and SEANTERRY BURKS v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 24, 2024
• Docket: 05-24-00526-CV
• Status: Published

Opinion

DENIED and Opinion Filed June 24, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00526-CV

IN RE ENERGY TRANSFER LP, ENERGY TRANSFER MARKETING & TERMINALS, L.P., AND SEANTERRY BURKS, Relators

Original Proceeding from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-23-02975

MEMORANDUM OPINION Before Justices Reichek, Goldstein, and Kennedy Opinion by Justice Kennedy Before the Court is relators’ May 3, 2024 petition for writ of mandamus.

Relators challenge the trial court’s order denying relators’ pleas in abatement. Also

before the Court is relators’ May 10, 2024 motion for stay and temporary relief,

including the response to that motion filed by real party in interest Frankie Bakkers,

individually and as a representative of the estate of Michael Scott Gray, deceased;

an amicus brief filed by Brydl Contracting, LLC opposing the motion; and relators’

reply in support of their motion. Relators seek a stay of all trial court proceedings in

the underlying suit. Entitlement to mandamus relief usually requires a relator to show that the trial

court clearly abused its discretion and that the relator lacks an adequate appellate

remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). A relator, however, need only establish a trial court’s abuse of

discretion to demonstrate entitlement to mandamus relief with regard to a plea in

abatement in a dominant-jurisdiction case. In re J.B. Hunt Trans., Inc., 492 S.W.3d

287, 299–300 (Tex. 2016) (original proceeding).

Relators bear the burden of providing the Court with a record that is sufficient

to show they are entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding). Relators were required to file with their petition a certified

or sworn copy of every document that is material to their claim for relief and that

was filed in the underlying proceeding. TEX. R. APP. P. 52.7(a)(1). Because the

parties in an original proceeding assemble their own record, this Court strictly

enforces the requirements of rule 52 to ensure the integrity of the mandamus record.

In re Electronics Research, Inc., No. 05-24-00476-CV, 2024 WL 1757245, at *1

(Tex. App.—Dallas Apr. 24, 2024, orig. proceeding) (mem. op.).

In her response to relators’ motion, Bakkers represented that she had filed

claims against Energy Transfer Crude Trucking LLC (ET Crude Trucking) in the

underlying proceeding but relators had omitted that party from this original

proceeding. In their reply, relators represented to this Court that Bakkers joined ET

Crude Trucking as a defendant in the suit on January 2, 2024 (before the ruling at

–2– issue), that they “inadvertently omitted” that defendant as a relator, and that relators

would file an amended petition listing ET Crude Trucking as one of the relators.

Relators’ petition fails to comply with rule 52 in two ways. First, relators

failed to identify ET Crude Trucking in its list of parties and counsel. TEX. R. APP.

P. 52.3(a) (“The petition must give a complete list of all parties. The petition must

also give a complete list of the names of all counsel appearing in the trial or appellate

courts . . . .”). Second, relators omitted from their mandamus record the petition

Bakkers filed against ET Crude Trucking. In fact, there are no documents in relators’

record that would alert this Court to ET Crude Trucking’s existence in the suit below.

Weeks have passed since relators filed their reply, and relators have neither

filed an amended petition for writ of mandamus nor supplemented their record to

include Bakkers’s petition against ET Crude Trucking. We conclude that the petition

Bakkers filed against ET Crude Trucking in the underlying proceeding is relevant

and material to relators’ requested relief. See TEX. R. APP. P. 52.7(a)(1). Thus,

relators failed to meet their burden to provide a sufficient record. This alone provides

grounds for denying relators’ petition.

In order to expedite a decision, however, we also reviewed relators’ requested

relief based on the petition and record before us. We conclude that relators failed to

demonstrate a clear abuse of discretion.

Accordingly, we deny relators’ petition. TEX. R. APP. P. 52.8(a).

–3– We also deny relators’ motion as moot.

/Nancy Kennedy/ NANCY KENNEDY 240526F.P05 JUSTICE

–4–