in Re H.L. "Larry" Gardner, Jr. ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00407-CV
In re H.L. “Larry” Gardner, Jr.
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relator H.L. “Larry” Gardner, Jr. filed a petition for writ of mandamus on
July 3, 2015. See Tex. R. App. P. 9.2(c)(4) (establishing that document is deemed filed when
transmitted to the filing party’s electronic service provider). On that day, this Court notified Gardner
that his petition had been rejected for noncompliance with the Rules of Appellate Procedure and
notified him that the petition should be resubmitted. As of July 13, 2015, Gardner had not
resubmitted his petition. Accordingly, we strike the petition and dismiss the proceeding without
prejudice to Gardner’s refiling of the petition. See id. R. 9.4(k).
In addition, on July 7, 2015, Gardner filed a motion for emergency stay of a contempt
hearing set for July 16, 2015. See Tex. R. App. P. 52.10(b) (allowing court to grant relief pending
court’s action on petition for writ of mandamus). Without a conforming petition for mandamus, this
Court lacks jurisdiction to grant emergency relief. See In re Kelleher, 999 S.W.2d 51, 52 (Tex.
App.—Amarillo 1999, orig. proceeding). Until a petition is filed, there is no dispute before the
Court necessitating the preservation of the status quo and empowering the Court to act under the
authority of Rule 52.10(b). Id. In addition, we note that the motion lacked the certificate of
compliance required by Rule 52.10(a) to show that the relator has notified or made a diligent effort
to notify all parties by expedited means of the motion’s filing. See In re Wolfe, No. 2-03-097-CV,
2003 WL 2006582, at *1 (Tex. App.—Fort Worth, Apr. 30, 2003, orig. proceeding) (citing In re
Ahmed, 42 Tex. Sup. Ct. J. 487, No. 99-0315 (April 8, 1999 order) and striking motion for temporary
relief because it did not contain required certificate of compliance). We dismiss the motion for
emergency stay for want of jurisdiction and without prejudice to refiling if and when Gardner
commences a proceeding under Rule 52.1.
__________________________________________
Cindy Olson Bourland, Justice
Before Justices Puryear, Goodwin, and Bourland
Filed: July 14, 2015
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