in Re: Candi Cooper ( 2010 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00057-CV

                                                ______________________________

                                                                        IN RE:

CANDI COOPER

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Candi Cooper, proceeding pro se, has filed a petition for writ of mandamus asking this Court to order the Honorable Paul Banner, sitting for the 115th Judicial District Court of Upshur County, Texas, to grant her motion to transfer venue in a suit affecting the parent-child relationship.  Cooper and David Johnston were divorced February 21, 2007, and appointed joint managing conservators of Z.B.J., a minor child. Although the divorce decree specified the residence of Z.B.J. would be Upshur County or a contiguous county, Cooper and Z.B.J. moved to Austin, Texas, in August 2008.  Johnston agreed to the move and agreed to secure an amended order permitting the residence of Z.B.J. to be established in Austin, Texas. Johnston, though, never obtained the amended order.  According to Cooper’s petition, Johnston filed, in Upshur County, a temporary restraining order alleging the use of marihuana by Cooper’s current husband endangered Z.B.J.   Cooper’s petition states that a motion to transfer venue was filed under Section 155.201 of the Texas Family Code, which provides for mandatory transfer of venue “if the child has resided in the other county for six months or longer.”  See Tex. Fam. Code Ann. § 155.201 (Vernon 2008).   After a hearing on the motion to transfer venue, the trial court denied the motion.

            Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law.  Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992); see In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009).  Under the appropriate circumstances, mandamus may be an available remedy when a trial court fails to grant a motion to transfer venue under Section 155.201 of the Texas Family Code.  See Tex. Fam. Code Ann. § 155.201, § 155.204(h) (Vernon Supp. 2009); In re Kerst, 237 S.W.3d 441, 442 (Tex. App.—Texarkana 2007, orig. proceeding); In re Compton, 185 S.W.3d 526, 530 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding). 

            Cooper, the relator, has failed to provide this Court with a sufficient record. It is the relator’s burden to provide this Court with a sufficient record to establish the right to mandamus relief.  Walker, 827 S.W.2d at 837; In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding); see Tex. R. App. P. 52.3.  The record accompanying Cooper’s petition for writ of mandamus consists of only the transcript of the hearing and three exhibits that were introduced during the hearing.  While the petition does contain an appendix, the appendix does not include “a certified or sworn copy of any order complained of, or any other document showing the matter complained of.”  See Tex. R. App. P. 52.3(k)(1)(A).  The appendix to Cooper’s petition contains only a copy of Section 155.204 of the Texas Family Code and a partial copy of a Child Protective Services (CPS) report. Cooper has failed to provide this Court with a copy of the motion complained of, the motion to transfer venue and the controverting affidavit, if any.   See Tex. R. App. P. 52.3(k).  We cannot evaluate Cooper’s petition for writ of mandamus without these documents.  We further note the petition does not certify that a copy was served on all parties to the proceeding.  See Tex. R. App. P. 9.5. 

            For the reasons stated, we deny Cooper’s petition for writ of mandamus.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          July 6, 2010    

Date Decided:             July 7, 2010

OPINION ON MOTION FOR REHEARING

            Candi Cooper has filed a motion for rehearing in which she requests this Court to reconsider our opinion denying her petition for writ of mandamus.  We denied Cooper’s petition for writ of mandamus for failing to include in the mandamus record presented to this Court a copy of the motion presented to the trial court.   See Tex. R. App. P. 52.3(k).  Cooper has now attached the motion to transfer venue and the controverting affidavit to her motion for rehearing.  Because this case fails to present “unusual circumstances” that would justify supplementing the record after an appellate court has issued its opinion, we overrule Cooper’s motion for rehearing.

            Before we can even reach the merits of Cooper’s motion for rehearing, we must first address whether Cooper may supplement the record at this late date. Rule 52.7(b) of the Texas Rules of Appellate Procedure, which governs the supplementation of the mandamus record, provides, “[a]fter the record is filed, relator or any other party to the proceeding may file additional materials for inclusion in the record.”  Tex. R. App. P. 52.7.  Traditionally, however, supplementation of a record has not been permitted after an opinion has been issued, except under “unusual circumstances.”   In re Cervantes, 300 S.W.3d 865, 871 (Tex. App.—Waco 2009, orig. proceeding) (op. on reh’g); Chapman v. Mitsui Eng’g & Shipbuilding Co., 781 S.W.2d 312, 318 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (op. on reh’g); K & S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887, 892 (Tex. App.—Dallas 1988, writ denied) (op. on reh’g); Archer v. Storm Nursery, Inc., 512 S.W.2d 82, 85 (Tex. Civ. App.—San Antonio 1974, no writ) (op. on reh’g). In three decisions, however, the Texas Supreme Court has not recited the traditional standard.  We examine those decisions.

            In Silk v. Terrill, the Texas Supreme Court held “[j]udicial economy is not served when a case, ripe for decision, is decided on a procedural technicality of this nature.  In the interests of justice and fair play, cases should be decided on the merits when deficiencies of this nature can be easily corrected.”  898 S.W.2d 764, 766 (Tex. 1995).   The Texas Supreme Court concluded the record could be supplemented after an opinion had been issued.  Id.

            A few years after Silk, the court held

[S]upplementation of the record after a case is decided is a different matter. It certainly does not serve judicial economy for the appellate court to allow a supplementation of the record that would require it to reconsider its decision on the merits when a party has had ample opportunity to correct the omission prior to decision.  The court of appeals decided this case not on a procedural technicality but on a record Worthy failed to supplement even after requesting and being granted leave to do so.

Worthy v. Collagen Corp., 967 S.W.2d 360, 366 (Tex. 1998).  The court distinguished Silk because the omitted item in Silk “was attached to the party’s brief and the party requested supplementation following oral argument and prior to the court’s decision.” Id.

            In the Interest of K.C.B., a direct appeal of a parental termination, is the most recent discussion by the Texas Supreme Court of supplementation of a record after an opinion has been issued. 251 S.W.3d 514 (Tex. 2008).  The Texas Supreme Court held the supplementation should have been granted because (1) there was no purposeful omission similar to Worthy, and (2) the appeal concerned fundamental liberty interests.  Id.

            Thus, we are faced with the question of whether, in these opinions, the traditional rule has been rejected by the Texas Supreme Court.^[1]  Silk, Worthy, and K.C.B. all indicate a preference for a decision to be based on the merits, rather than a procedural technicality. However, they all also recognize limits to the application of this preference.  All three cases indicate a certain reluctance to allow supplementation after an opinion has been issued.  As noted above, none of the cases explicitly overrule the traditional rule. We believe these cases are consistent with the traditional rule.  Silk specifically distinguishes K & S Interests, which applied the traditional rule.  Worthy is consistent with the traditional rule in that the record could not be supplemented after the issuance of an opinion. Finally, K.C.B. is consistent with the traditional rule in that “unusual circumstances” were presented.  The “unusual circumstance” was that the appeal concerned parental termination, which raises fundamental liberty interests.  We are reluctant to conclude the Texas Supreme Court has rejected a well established rule when it has failed to explicitly overrule the rule and its decisions can be harmonized with the traditional rule.  Recently, the Waco Court of Appeals has applied the traditional rule in deciding whether a party could supplement the record after the issuance of an opinion.  See Cervantes, 300 S.W.3d at 871 (“We accept this ‘unusual circumstances’ test as appropriate . . . .”).  We conclude that the traditional rule still governs whether a party may supplement a record after an opinion has been issued.  Thus, the remaining question is whether this case presents “unusual circumstances.”

            The fact that this mandamus action arises out of a child-custody case does not present unusual circumstances.  This case does not concern the termination of parental rights.  The termination of parental rights presents fundamental liberty interests not present in all suits affecting the parent-child relationship. Unlike a direct appeal from a termination proceeding, the custody dispute in this case is not a permanent decision.  In fact, the ruling from which Cooper seeks mandamus relief is a venue ruling, that is, a ruling preliminary to any custody decision.  Although we have not addressed the merits of Cooper’s petition, there is no prohibition against Cooper filing another petition seeking a writ of mandamus. This case presents no unusual circumstances.^[2]

            We recognize that cases should be decided on the merits, rather than procedural technicalities, whenever possible.  However, we are unwilling to open the floodgates and allow parties in any case that does not present “unusual circumstances” to supplement the record after an opinion has been issued.  As stated by the Texas Supreme Court in Worthy, “supplementation of the record after a case is decided is a different matter.” Worthy, 967 S.W.2d at 366.  Cooper was obligated to present an adequate record before our opinion issued.  This case presents no “unusual circumstances” which would justify allowing supplementation at this late date.

            For the reasons stated, we overrule Cooper’s motion for rehearing.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date:   August 6, 2010

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^[1]The Texas Rules of Appellate Procedure were amended in 1997 to remove the traditional distinction between supplementation before submission and supplementation after submission.  Compare Tex. R. App. P. 34.6 with Tex. R. App. P. 55, adopted 707–08 S.W.2d (Tex. Cases) p. lxviii-lxix (1986).  We do not believe this amendment is relevant to the issue presented in this case—supplementation of the record after an appellate court has issued an opinion.  The traditional rule is not based on the more stringent requirements contained by the prior rules for supplementation after submission.  Rather, the traditional rule was based on three concerns:  (1) the spirit and purpose of the rules setting forth the appellate timetable, (2) the spirit and purpose of the rules placing the burden on appellant to see that a sufficient record is presented to show error requiring reversal, and (3) to prevent interference with the orderly administration of justice.  K & S Interests, 749 S.W.2d at 892.

^[2]Also, the fact that Cooper is proceeding pro se fails to present any unusual circumstances.  The law is well settled that “[a] party proceeding pro se must comply with all applicable procedural rules” and is held to the same standards as a licensed attorney.  Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no writ).