in Re Texas Private Schools Foundation, Inc. D/B/A Allen Academy

• Court: Court of Appeals of Texas
• Decided: August 2, 2017
• Docket: 10-16-00343-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00271-CV

IN RE JERRY A. BULLIN, INDIVIDUALLY, CJB PARTNERS, LTD., AND ITS GENERAL PARTNER CJB PARTNERS MANAGEMENT, LLC, AND BRE GROUP, LTD

Original Proceeding

and

No. 10-16-00343-CV

IN RE TEXAS PRIVATE SCHOOLS FOUNDATION, INC. D/B/A ALLEN ACADEMY

DISSENTING OPINION

This pair of mandamus proceedings presents an interesting problem. The problem

is record related. Some people would characterize the problem as procedural. Some

people would characterize the problem as a merits related, or substantive, issue. But both relators and the real-parties-in-interest, which are reversed in the two proceedings,

believe, based upon statements in their briefing, that we have in front of us Bullins’ tax

returns that have not been redacted for the years 2008 to 2013, inclusive. We do not. I

would order the nominal party to these proceedings, the respondent trial court judge, to

forward to this Court the documents tendered for in-camera review.

In another proceeding, we had a similar problem in endeavoring to determine

what documents were actually tendered to the trial court that were still at issue in the

discovery dispute. In a very detailed order, we specified the procedure to make sure that

we were looking at the documents that were in issue. A copy of that order is attached to

this dissenting opinion as an appendix. We ordered the party in possession of the

documents to prepare a tabbed notebook and present it to the respondent trial court

judge, and ordered the judge to certify that those were the documents he had been

tendered, reviewed, and upon which his discovery order was based. He forwarded that

notebook directly to this Court. In this manner, this Court knew for certain that the

documents we were reviewing in camera were the same documents tendered to the trial

court for in camera review.

There is no specified procedure for how documents tendered in camera are

maintained in the trial court and then submitted to the appellate court at the appropriate

time if needed. There is a sub-committee of the Texas Supreme Court Rules Advisory

Committee that is examining this procedural problem. But lacking a clear procedure,

In re Jerry A. Bullin In re Texas Private Schools Foundation, Inc. Page 2 neither of these parties should suffer a summary denial of their mandamus petition

simply because they are both operating under the misconception that the documents

tendered for review by the trial court mysteriously made their way to the appellate court

in this mandamus proceeding. They did not.

Thus, I cannot join the denial of these mandamus petitions at this time. Without

seeing what both parties think is in front of us, and without the Court notifying the parties

of this issue and ordering that the materials be placed before us in some fashion, I must

respectfully dissent to the denial of the petitions at this time.

TOM GRAY Chief Justice

Dissenting opinion issued and filed August 2, 2017

In re Jerry A. Bullin In re Texas Private Schools Foundation, Inc. Page 3 APPENDIX

No. 10-16-00374-CV

IN RE MID-CENTURY INSURANCE COMPANY

ORDER

Relator’s Petition for Writ of Mandamus was filed on November 9, 2016. Relator

submitted over 1200 pages to the trial court and this Court for an in-camera review. The

privilege log submitted with the petition identifies approximately 500 pages.

Relator is Ordered to prepare a privilege log for only the documents that remain

in dispute in this proceeding and attach a hard copy of each document; the privilege log

must be placed in a notebook(s) which must also contain the hard copy of each document

identified in the privilege log; and each in-camera document submitted in the notebook(s)

must be separated by a tab numbered to match the line item of the description in the

privilege log. The completed notebook(s) must be delivered to the trial court within 21 days of

the date of this Order. Within 21 days of the date of receipt of the notebook(s), the trial

court must verify that the documents contained in the notebook(s) are the same

documents that the trial court ordered produced. The notebook(s) must then be

forwarded to this Court directly from the trial court within 7 days from the date of the

trial court’s verification as described above.

The failure of relator to comply with this Order will result in the dismissal of

relator’s petition.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed February 8, 2017

In re Mid-Century Insurance Company Page 2