in Re H.L. "Larry" Gardner, Jr.

• Court: Court of Appeals of Texas
• Decided: July 15, 2015
• Docket: 03-15-00407-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00407-CV

In re H.L. “Larry” Gardner, Jr.

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator H.L. “Larry” Gardner, Jr. filed a petition for writ of mandamus on

July 3, 2015. See Tex. R. App. P. 9.2(c)(4) (establishing that document is deemed filed when

transmitted to the filing party’s electronic service provider). On that day, this Court notified Gardner

that his petition had been rejected for noncompliance with the Rules of Appellate Procedure and

notified him that the petition should be resubmitted. As of July 13, 2015, Gardner had not

resubmitted his petition. Accordingly, we strike the petition and dismiss the proceeding without

prejudice to Gardner’s refiling of the petition. See id. R. 9.4(k).

In addition, on July 7, 2015, Gardner filed a motion for emergency stay of a contempt

hearing set for July 16, 2015. See Tex. R. App. P. 52.10(b) (allowing court to grant relief pending

court’s action on petition for writ of mandamus). Without a conforming petition for mandamus, this

Court lacks jurisdiction to grant emergency relief. See In re Kelleher, 999 S.W.2d 51, 52 (Tex.

App.—Amarillo 1999, orig. proceeding). Until a petition is filed, there is no dispute before the

Court necessitating the preservation of the status quo and empowering the Court to act under the

authority of Rule 52.10(b). Id. In addition, we note that the motion lacked the certificate of compliance required by Rule 52.10(a) to show that the relator has notified or made a diligent effort

to notify all parties by expedited means of the motion’s filing. See In re Wolfe, No. 2-03-097-CV,

2003 WL 2006582, at *1 (Tex. App.—Fort Worth, Apr. 30, 2003, orig. proceeding) (citing In re

Ahmed, 42 Tex. Sup. Ct. J. 487, No. 99-0315 (April 8, 1999 order) and striking motion for temporary

relief because it did not contain required certificate of compliance). We dismiss the motion for

emergency stay for want of jurisdiction and without prejudice to refiling if and when Gardner

commences a proceeding under Rule 52.1.

__________________________________________

Cindy Olson Bourland, Justice

Before Justices Puryear, Goodwin, and Bourland

Filed: July 14, 2015