in Re Marathon Oil EF Marathon Oil EF II, LLC And Marathon Oil Company ( 2021 )

Memorandum Dissenting Opinion to Request for Response filed October 14,
2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00545-CV
IN RE MARATHON OIL EF; MARATHON OIL EF II, LLC; AND
MARATHON OIL COMPANY, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
234th District Court
Harris County, Texas
Trial Court Cause No. 2019-56688
MEMORANDUM DISSENTING OPINION
Because the court implicitly addresses the merits of the petition despite the
absence of a proper record, I dissent to proceeding with this matter without first
giving relators notice and an opportunity to cure the deficiency. Relators’
verification of the mandamus record does not appear to meet the requirement of
Tex. R. App. P. 52.7(a)(1)—that relators must file a certified or sworn copy of
every document that is material to the relators’ claim for relief and that was filed in
the underlying proceeding—as the verification is neither an affidavit nor
substantially complies with an unsworn declaration. See Tex. Civ. Prac. & Rem.
Code Ann. § 132.001(c) (requiring the declaration reflect it be “as true under
penalty of perjury.”). Our system requires that someone with knowledge state
under penalty of perjury that the record brought to this court is true; the court
cannot put itself in the position of accepting records in some cases that meet this
standard while turning a blind eye to others that do not.
When relators are pro se, incarcerated individuals, this court goes beyond the
requirements of Texas Rule of Appellate Procedure 52 and imposes “extra rules”
that block access to justice. See, e.g., In re Gomez, 602 S.W.3d 71, 74–75 (Tex.
App.—Houston [14th Dist.] 2020, no pet.) (orig. proceeding) (Spain, J.,
concurring); In re Pete, 589 S.W.3d 320, 322–24 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (orig. proceeding) (Spain, J., concurring); In re Flanigan, 578
S.W.3d 634, 637–38 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (orig.
proceeding) (Spain, J., concurring). Yet the court here does not enforce the actual
rules regarding a proper record in an original proceeding.
I would follow the plain meaning of Civil Practice and Remedies Code
section 132.001(c) and Texas Rule of Appellate Procedure 52.7(a). Tex. R. App. P.
52.7(a) (“Relator must file with the petition: (1) a certified or sworn copy of every
document that is material to the relator's claim for relief and that was filed in any
underlying proceeding; and (2) a properly authenticated transcript of any relevant
testimony from any underlying proceeding, including any exhibits offered in
evidence, or a statement that no testimony was adduced in connection with the
matter complained.”) (emphasis added); see Tex. Civ. Prac. & Rem. Code Ann.
§ 132.001(c). Because the Code Construction Act applies to the Texas Rules of
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Appellate Procedure, the word “must” creates or recognizes a condition precedent.
Tex. Gov’t Code Ann. §§ 311.002(4) (applying Act to rules), .016(3) (defining
“must”).
Our duty as judges is to reach a decision on the merits based on a proper
record. Due process and due course of law require that this court give notice when
the original-proceeding record does not comply with the Texas Rules of Appellate
Procedure. I would give relators 10-days notice of involuntary dismissal for failure
to comply with Texas Rule of Appellate Procedure 52.7(a). See In re Kholaif, 624
S.W.3d 228, 231 (order), mand. dism’d, 615 S.W.3d 369 (Tex. App.—Houston
[14th Dist.] 2020) (orig. proceeding). Parties before the court should be treated
impartially.
Regardless of the court’s reluctance in this matter, I am confident that
relators can swiftly cure the mandamus record so that this original proceeding can
be decided on the merits.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).
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