In Re: Patrick Roughneen, M.D., Cherie Roughneen and Patrick T. Roughneen, M.D., P.A. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 7, 2024
• Docket: 05-24-00023-CV
• Status: Published

Opinion

DENIED and Opinion Filed February 7, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00023-CV

IN RE PATRICK ROUGHNEEN, M.D., CHERIE ROUGHNEEN, AND PATRICK T. ROUGHNEEN, M.D., P.A., Relators

Original Proceeding from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-14053

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

relators contend that the trial court has failed to rule on four pending motions within

a reasonable amount of time.

Entitlement to mandamus relief 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). When the requested relief is to compel a trial court to rule on a motion,

the relator must show (1) the trial court had a legal duty to rule on the motion,

(2) relator requested a ruling, and (3) the trial court failed or refused to do so within a reasonable time. See In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig.

proceeding) (mem. op.). It is the relator’s burden to provide a record sufficient to

establish its right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding); see also TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).

Relators’ petition does not comply with the Texas Rules of Appellate

Procedure. See, e.g., TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1), (2). For instance,

none of the documents included in relators’ appendix or record are properly certified

or sworn copies. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1); see also In re

Romero, No. 05-23-00922-CV, 2023 WL 6226322, at *1 (Tex. App.—Dallas Sept.

26, 2023, orig. proceeding) (mem. op.); In re Lancaster, No. 05-23-00381-CV, 2023

WL 3267865, at *1 (Tex. App.—Dallas May 5, 2023, orig. proceeding) (mem. op.).

Additionally, under Rule 52.7(a)(2), relators were required to file with their petition

either a properly authenticated transcript of any relevant testimony from any

underlying proceeding or a statement that no testimony was adduced in connection

with the matter complained. See TEX. R. APP. P. 52.7(a)(2). Relators provided neither

despite the record reflecting at least eight hearings relevant to the motions at issue.

Even if no testimony was adduced at these hearings, the hearings appear material to

relators’ claim for relief. See TEX. R. APP. P. 52.7(a)(1). Therefore, we also conclude

that relators have failed to carry their burden to provide a record sufficient to

establish entitlement to mandamus relief.

–2– Accordingly, we deny relators’ petition for writ of mandamus.

/Nancy Kennedy/ NANCY KENNEDY JUSTICE 240023F.P05

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