in Re Matthew Alan Clendennen

• Court: Court of Appeals of Texas
• Decided: July 7, 2015
• Docket: 10-15-00235-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00235-CR

IN RE MATTHEW ALAN CLENDENNEN

Original Proceeding

ORDER

Relator Matthew Alan Clendennen’s Petition for Writ of Mandamus was filed on

July 1, 2015. There are numerous procedural deficiencies with the petition and the

associated appendix.

The petition was not properly certified. See TEX. R. APP. P. 52.3(j) (“The person

filing the petition must certify that he or she has reviewed the petition and concluded

that every factual statement in the petition is supported by competent evidence

included in the appendix or record.”).

Accordingly, relator is ORDERED to electronically file and electronically serve a

proper certification of the petition with this Court by 5:00 p.m. on July 23, 2015. Relator’s failure to timely comply with this Order will result in the denial of this

petition without further notice from the Court. Further, although the petition was

electronically filed as required by Rule 9.2(c)(1), it was not electronically served as

required by Rule 9.5(b)(1). See TEX. R. APP. P. 9.2(c)(1); 9.5(b)(1)(“Attorneys in criminal

cases must electronically file documents…;” “A document filed electronically under

Rule 9.2 must be served electronically through the electronic filing manager if the email

address of the party or attorney to be served is on file with the electronic filing

manager.”). Because the petition contains proof of service, the Court uses Rule 2 of the

Texas Rules of Appellate Procedure to dispense with the electronic service requirement

for this isolated instance. Id. 2 (“an appellate court may - to expedite a decision or for

other good cause - suspend a rule's operation in a particular case and order a different

procedure….”).

The appendix, which was filed separately from the petition on July 2, 2015, was

not electronically filed as required by Rule 9.2(c)(1). See TEX. R. APP. P. 9.2(c)(1)

(“Attorneys in criminal cases must electronically file documents….”). An exception

from this Rule may be requested in a motion filed with the appellate court showing

good cause. Id. (“Attorneys in criminal cases must electronically file documents except

for good cause shown in a motion filed in the appellate court.” (Emphasis added)). Relator’s

attorney did not file a motion requesting an exception from this Rule. The appendix

also does not contain proof of service as required by Rule 9.5(d). See id. 9.5(d) (“A

In re Clendennen Page 2 document presented for filing must contain a proof of service in the form of either an

acknowledgment of service by the person served or a certificate of service.”). Further, it

is unclear whether the documents contained in Exhibits 1, 2, and 5 have been certified

or sworn as required by Rule 52.3. See id. 52.3(k)(1)(A) (“The appendix must contain: ...

a certified or sworn copy of any order complained of, or any other document showing

the matter complained of….”). We consider the copy of the news reports video

attached as Exhibit 5 to be a “document” under the Rule.

Accordingly, relator is ORDERED to electronically file and electronically serve

the appendix, providing proper proof of service of the appendix, and electronically file

and electronically serve, providing proper proof of service, certified copies of Exhibits 1,

2, and 5 or a sworn declaration that the copies already provided are true and correct

with the Court by 5:00 p.m. on July 23, 2015. Should relator require an exception to this

Order, relator must electronically file and electronically serve a motion requesting such

exception showing good cause and provide proper proof of service to the Court by the

same date and time set out above. Relator’s failure to timely comply with this Order

will result in the denial of this petition without further notice from the Court.

No record has been filed with the petition as required by Rule 52.7. See TEX. R.

APP. P. 52.7(a). Accordingly, relator is ORDERED to electronically file and

electronically serve the record, providing proper proof of service, with the Court by 5:00

p.m. on July 23, 2015. Should relator require an exception to this Order, relator must

In re Clendennen Page 3 electronically file and electronically serve a motion requesting such exception showing

good cause and provide proper proof of service to the Court by the same date and time

set out above. Relator’s failure to timely comply with this Order will result in the denial

of this petition without further notice from the Court.

Because the subject of the petition is a “gag” order, the relator’s attention is

drawn to the exception from the filing of documents to which access is otherwise

restricted by law or court order. See TEX. R. APP. P. 9.2(c) (“Documents filed under seal,

subject to a pending motion to seal, or to which access is otherwise restricted by law or

court order must not be electronically filed.”).

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed July 7, 2015

In re Clendennen Page 4