in Re: Michael Hicks and Jerry Fazio

• Court: Court of Appeals of Texas
• Decided: October 3, 2006
• Docket: 14-06-00768-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 3, 2006

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 3, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00768-CV

IN RE: MICHAEL HICKS AND JERRY FAZIO, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On September 7, 2006, relators, Michael Hicks and Jerry Fazio filed a petition for writ of mandamus in Cause No. 2005V-0034, styled Clarendon Ins. Group, Inc. v. Catherine Taylor, individually and next friend of Charles D. Taylor, and William Heitkamp, pending in the 155th Judicial District Court of Austin County, Texas, the Honorable Judge Dan R. Beck presiding.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relators ask this court to review trial court orders that are ostensibly memorialized on the trial court=s docket sheet and confirmed by counsel via counsel=s subsequent letter to the court. 

Relator=s petition is insufficient to permit mandamus review under Texas Rule of Appellate Procedure 52.3(j)(1)(A), which mandates an appendix containing Aa certified or sworn copy of any order complained of, or any other document showing the matter complained of.@  Tex. R. App. P. 53.3(j)(1)(A).  A copy of the court=s docket sheet does not satisfy this rule, because A[a] docket entry forms no part of the record which may be considered; it is a memorandum made for the trial court and clerk=s convenience.@  Energo Intern. Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex. App.CDallas 1986, no writ).  Counsel=s subsequent letter attempting to confirm the content of the trial court=s alleged order does not change this result, but serves instead to underscore the problem that the current record creates.  It simply is not clear what the trial court ordered or whether it ordered anything at all.  Under these circumstances, review is not possible.

We accordingly deny relator=s petition for writ of mandamus.  In the event that the trial court issues an order within 15 days of our ruling, under Texas Rule of Appellate Procedure 52.9, we will entertain a motion for rehearing based on a supplemental record.

PER CURIAM

Petition Denied and Memorandum Opinion filed October 3, 2006.

Panel consists of Justices Fowler, Edelman, and Frost.