in Re Raymond C. Clark, Jr.

Opinion

ACCEPTED 01-15-00729-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/2/2015 4:12:38 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00729-CV

__________________________________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 10/2/2015 4:12:38 PM FOR THE FIRST JUDICIAL DISTRICT OF TEXAS CHRISTOPHER A. PRINE AT HOUSTON, TEXAS Clerk __________________________________________________________________

IN RE: RAYMOND C. CLARK, JR., Relator __________________________________________________________________

ORIGINAL PROCEEDING FROM THE 300TH JUDICIAL DISTRICT COURT BRAZORIA COUNTY, TEXAS CAUSE NO. 68,312 __________________________________________________________________

FIRST SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS _________________________________________________________________

WILLIAM J. ROBERTSON State Bar No. 17077500 9800 Northwest Freeway, Suite 314 Houston, Texas 77092 Tele: (713) 263-9911 Fax: (866) 657-5609 Email: Robertsonlawfirm@gmail.com ATTORNEY FOR RELATOR RAYMOND C. CLARK, JR.

1 IDENTITY OF PARTIES AND COUNSEL

Relator:

Raymond C. Clark, Jr. 7314 Valentine Lane Pearland, Texas 77584

Counsel for Relator:

William J. Robertson State Bar No: 17077500 9800 Northwest Freeway, Suite 314 Houston, Texas 77092 Tele: (713) 263-9911 Fax: (866) 657-5609

Respondents:

The Honorable K. Randall Hufstetler, Presiding Judge 300th Judicial District Court Brazoria County, Texas 111 E. Locust, Room 401A Angleton, Texas 77515

The Honorable Chad Bradshaw, Associate Judge 300th Judicial District Court, Brazoria County, Texas 111 E. Locust, Room 401 Angleton, Texas 77515

Real Party in Interest:

Wendy Morrow Clark 3818 Gladeridge Drive Houston, Texas 77068

2 Counsel for Real Party in Interest:

Walter P. Mahoney, Jr. State Bar No: 24043328 The Mahoney Law Firm 3668 Burke Pasadena, Texas 77504 Tele: (281) 998-9450 Fax: (281) 998-9430

Amicus Attorney

Michelle A. Stover State Bar No. 0079*7508 P.O. Box 1087 Angleton, Texas 77516-1087 Tele: 979-849-5563 Fax: 866-973-1717

3 TABLE OF CONTENTS PAGE IDENTITY OF PARTIES AND COUNSEL ............................................................2

TABLE OF CONTENTS ...........................................................................................4

INDEX OF AUTHORITIES......................................................................................5

ISSUES PRESENTED...............................................................................................5

Issue Two ................................................................................................................5 Did the failure of the Honorable K. Randall Hufstetler to sign, or take other action he deemed proper, with regard to the February 20, 2015 final order of the Associate Judge in the underlying cause of action constitute an abuse of discretion that denied the Relator the right to appeal the final order of the trial court because such inaction by the presiding judge deprived the Court of Appeals jurisdiction? ...........................................................................................5

ARGUMENT AND AUTHORITIES ........................................................................6

Issue Two ................................................................................................................6 The failure of the Honorable K. Randall Hufstetler to sign, or take other action he deemed proper, with regard to the February 20, 2015 final order of the Associate Judge in the underlying cause of action constituted an abuse of discretion that denied the Relator the right to appeal the final order of the trial because such inaction by the presiding judge deprived the Court of Appeals jurisdiction to consider the Relator’s appeal. ......................................................6

CONCLUSION AND PRAYER ...............................................................................8

CERTIFICATE OF SERVICE ..................................................................................9

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3(j) ............10

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i) ..............10

RELATOR’S SUPPLEMENTAL APPENDIX.......................................................11

4 INDEX OF AUTHORITIES PAGE Statutes

TEX. FAM. CODE §201.001 (e) ...............................................................................6

TEX. FAM. CODE §201.013 (b)...............................................................................6

TEX. FAM. CODE §201.013 (a) ...............................................................................7

TEX. GOV. CODE §22.221(b)..................................................................................6

Constitutional Provisions

TEX. CONST. §19 .....................................................................................................7

TEX. CONST. art I §3 ...............................................................................................7

U. S. CONST. amend. VII .........................................................................................7

U.S. CONST. amend V ..............................................................................................7

ISSUES PRESENTED Issue Two Did the failure of the Honorable K. Randall Hufstetler to sign, or take other action he deemed proper, with regard to the February 20, 2015 final order of the Associate Judge in the underlying cause of action constitute an abuse of discretion that denied the Relator the right to appeal the final order of the trial court because such inaction by the presiding judge deprived the Court of Appeals jurisdiction?

5 ARGUMENT AND AUTHORITIES Issue Two The failure of the Honorable K. Randall Hufstetler to sign, or take other action he deemed proper, with regard to the February 20, 2015 final order of the Associate Judge in the underlying cause of action constituted an abuse of discretion that denied the Relator the right to appeal the final order of the trial because such inaction by the presiding judge deprived the Court of Appeals jurisdiction to consider the Relator’s appeal.

The Texas Family Code provides that after a hearing conducted by an

Associate Judge that the Associate Judge shall send the Associate Judge’s signed

and dated report, including any proposed order, and all other papers relating to the

case to the referring court. TEX. FAM. CODE §201.011 (e). In this case, the

parties waived the right to a de novo hearing before the presiding judge, as such,

the proposed order or judgment of the Associate Judge becomes the order or

judgment of the referring court only on the referring court’s signing the proposed

order or judgment. TEX. FAM. CODE §201.013 (b).

The failure of the Associate Judge to comply with the mandatory provision

of TEX. FAM. CODE §201.011 (e) and the failure of the Presiding Judge, the

Honorable K. Randall Hufstetler, to sign the final judgment of February 20, 2015

or take whatever action he deemed proper has denied the Relator an adequate

remedy at law because such inaction denies the Relator of the ability to seek relief

in the Court of Appeals because, such inaction by the Associate Judge and the

6 Presiding Judge deprives the Court of Appeals jurisdiction to consider an appeal by

Relator. TEX. GOV. CODE §22.221(b).

The lack appellate jurisdiction has denied Relator the right to seek

mandamus relief for the improper denial of the Relator’s constitutional right to a

jury trial, the failure of the court to correctly apply the law and an electronic

recording system that failed to properly record the testimony of a material witness.

The failure of the Presiding Judge and the Associate Judge of the 300 th

Judicial District Court of Brazoria County, Texas to make the final order dated

February 20, 2015 the final appealable order of the Presiding Judge have placed

the Relator in the position of being subject to the full force and effect of the

Associate Judge’s order pursuant to TEX. FAM. CODE §201.013 (a) while at the

same time being denied due process as guaranteed under the TEX. CONST. art I

§3, TEX. CONST. art. I §19 and the U. S. CONST. amend. V and U. S. CONST.

amend. VII because the Relator is (1) denied access to equitable and extraordinary

relief in the Court of Appeals on jurisdictional grounds and (2) the Relator is

denied the right to appeal the February 20, 2015 order.

In this regard, on September 23, 2015, the Clerk of the Court of Appeals

notified Relator that his appeal would be dismissed for lack of jurisdiction, citing

statutory and case authority as stated therein, unless Relator supplemented the

clerk’s record with an order that is an appealable order. In other words, an order

7 signed or adopted by the Presiding Judge of the 300th Judicial District Court of

Brazoria County, Texas (APP. TAB 7).

Inaction by the Presiding Judge of the 300th Judicial District Court of

Brazoria County, Texas has denied a citizen of the State of Texas his constitutional

right to challenge the trial court’s rulings by either by mandamus, appeal or both.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Relator prays that this

Petition for Writ of Mandamus be in all things granted and that the Court of

Appeals order the Presiding Judge of the 300th Judicial District Court of Brazoria

County, Texas to perform those acts necessary to enable the Presiding Judge to

sign the order of the Associate Judge dated February 20, 2015 and that Relator

have such other and further relief to which he may show himself justly entitled.

Respectfully submitted,

/s/ William J. Robertson _____________________ William J. Robertson State Bar No. 17077500 9800 Northwest Freeway, Suite 314 Houston, Texas 77092 (713) 263-9911 Tele. (866) 657-5609 Fax Robertsonlawfirm@gmail.com ATTORNEY FOR RELATOR RAYMOND C. CLARK, JR.

8 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing “First Supplemental Petition for Writ of Mandamus” was forwarded by facsimile and/or by U.S. Certified Mail, Return Receipt Requested to all pro se parties and/or counsel of record on this 2nd day of October 2015. The Honorable K. Randall Hufstetler, Presiding Judge 300th Judicial District Court Brazoria County, Texas 111 E. Locust, Room 401A Angleton, Texas 77515 Certified Mail, Return Receipt Requested 7015-0640-0005-2383-8541

The Honorable Chad Bradshaw, Associate Judge 300th Judicial District Court, Brazoria County, Texas 111 E. Locust, Room 401 Angleton, Texas 77515 Certified Mail, Return Receipt Requested 7015-0640-0005-2383-9074

Walter P. Mahoney, Jr. The Mahoney Law Firm 3668 Burke Pasadena, Texas 77504 Certified Mail, Return Receipt Requested 7015-0640-0005-2383-9081

Michelle A. Stover Law Office of Michelle A. Stover P.O. Box 1087 Angleton, Texas 77516-1087 Certified Mail, Return Receipt Requested 7015-0640-0005-2383-9098

/s/ William J. Robertson _______________________ William J. Robertson

9 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3(j)

This certifies that the undersigned has reviewed this Petition and concluded that every factual statement in it is supported by competent evidence included in the appendix or record as required by Appellate Rule 52.3(j).

/s/ William J. Robertson ____________________________ William J. Robertson

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)

I certify that is document contains 1,597 words, as indicated by the word- count function of the computer program used to prepare it, and excluding the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix, as provided by Appellate Rule 9.4(i).

/s/ William J. Robertson ____________________________ William J. Robertson

10 NO. 01-15-00729-CV

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON, TEXAS __________________________________________________________________

IN RE: RAYMOND C. CLARK, JR., Relator __________________________________________________________________

ORIGINAL PROCEEDING FROM THE 300TH JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS CAUSE NO. 68,312 __________________________________________________________________

RELATOR’S SUPPLEMENTAL APPENDIX _________________________________________________________________

TAB NO. DESCRIPTION

7. Letter from Clerk of Court of Appeals dated September 23, 2015.

11 TAB 7

12 COURT OF APPEALS FOR THE FIRST D ISTRICT OF TEXAS AT HOUSTON

NOTICE

Appellate case name: Raymond C. Clark v. Wendy Jean Morrow Clark

Appellate case number: 0 1-15-00615-CV

Trial court case number: 68312-D

Trial court: 300th District Court of Brazoria County

The Court has directed me to notify you that the Court may dismiss this appeal for want of jurisdiction.

Appellant, Raymond C. Clark, filed his notice of appeal of an Order in Suit to Modify Parent-Child Relationship signed on February 20, 2015. The clerk's record filed with this Court includes an order signed on February 20, 2015 by the Honorable Chad D. Bradshaw, Associate Judge. An associate judge only has the power to render a final judgment or order in a limited number of circumstances expressly set forth in the Family Code- none of which appear to be applicable here. See TEX. FAM. CODE ANN. § 201.007(a)(14) (identifying specific types of orders associates judges may "render and sign"); see also Graham v. Graham, 414 S.W.3d 800, 801 (Tex. App.- Houston [I st Dist.] 2013, no pet.) (noting associate judges do not have power to render final judgment outside context of limited exceptions listed in Family Code section 20 1.007(a)(14)).

An associate judge's order that falls outside the scope of section 201.007(a)(14) "becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment." TEX. FAM. CODE ANN. § 201.013(b). Here, the record does not indicate that the February 20, 2015 order has been signed by the referring court or constitutes an otherwise appealable order. See TEX. FAM. CODE ANN. § 109.002(b) ("An appeal may be taken by any party to a suit from a final order rendered under this title."); In re M.E.M., No. 05-09- 00022-CV, 2009 WL 294939, at * 1 (Tex. App.- Dallas Feb. 9, 2009, no pet.) (mem. op.) (dismissing appeal because associate judge's order was not final judgment or otherwise appealable order.

Unless appellant causes to be filed a supplemental clerk's record containing documents showing that the February 20, 2015 order is an appealable order, or files a response demonstrating by citation to the law and the appellate record that this Court has jurisdiction of the appeal, this appeal may be dismissed for want of jurisdiction. See T EX . R. Arr. P. 42.3(a), 43.2(f). Appellant's respo nse, if any. is due in this Court within 14 days of the date of this notice.

Clerk 's Signature: c~~;:,.. Christopher A. Prine, Clerk of the Court

Date: September 23, 2015