in Re Manuel Pena

Opinion

Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions filed February 25, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00735-CR

IN RE MANUEL PENA, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 184th District Court Harris County, Texas Trial Court Cause No. 1457098

DISSENTING OPINION

This court has no proper record on which to reach a decision on the merits. Rather than give relator notice of the problem and an opportunity to cure the mandamus record and be heard on the merits, the court denies the petition. This court should treat similarly situated parties the same way. In other cases, this court has notified the relator of the error and allowed time for the deficiency to be cured. If the deficiency was not corrected, the petition was dismissed, rather than denied, because the merits of the petition were never considered. Accordingly, the court should give relator notice that this original proceeding will be dismissed unless the procedural deficiencies are remedied. See In re Kholaif, No. 14-20-00731-CV & 14-20-00732-CV, 2020 WL 7013339 (Nov. 25, 2020, order), dism’d, 2020 WL 7633850 (Tex. App.—Houston [14th Dist.] Dec. 22, 2020, no pet. h.). The court should not determine whether relator will be able to file a confirming petition and mandamus record without giving relator the benefit of due process and due course of law.

Because I would not deny a petition for a procedural defect, I respectfully dissent.

/s/ Frances Bourliot Justice

Panel consists of Justices Jewell and Bourliot and Wilson. (Jewell, J., majority) (Bourliot, J., dissenting). Publish — Tex. R. App. P. 47.2(b).