in Re Darrell Archer ( 2021 )

Petition for Writ of Mandamus Denied and Memorandum Majority and
Dissenting Opinions filed October 14, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00374-CV
IN RE DARRELL ARCHER, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1145555
MEMORANDUM DISSENTING OPINION
On July 19, 2021, this court issued an order, stating in part, as follows:
Relator’s petition and appendix do not comply with the Texas
Rules of Appellate Procedure. See Tex. R. App. P. 52.3(k), 52.7(a).
Relator did not file a separate record as required by Rule 52.7.
Certified or sworn copies of documents showing the matters of which
relator complains are not filed in either the petition’s appendix or a
record. See Tex. R. App. P. 52.3(k)(1)(A) (requiring relator to include,
as part of appendix, “certified or sworn copy of . . . any other
document showing the matter complained of”); Tex. R. App. P.
52.7(a) (requiring relator to file with petition “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 “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”). An unsworn declaration is an alternate method that
relator may use. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001.
Additionally, in support of relator’s mandamus, relator
provided the Court with various documents; however, relator did not
include every document that is material to the relator’s claim that the
trial court abused its discretion in granting plaintiffs’ motion to
compel discovery in aid of judgment. See Tex. R. App. P. 52.7(a).
Specifically, relator omitted Exhibit 2 to the real parties’ motion to
compel. This document is material to relator’s claim.
Relator’s petition and appendix incorrectly identify the court in
which this mandamus is filed. Relator’s amended petition should
reflect this mandamus as pending in the Fourteenth Court of Appeals.
By this order, the Court gives relator notice that the petition
will be dismissed unless an amended petition is filed within ten days
of the date of this order that addresses the record issues identified
above and discussed in In re Kholaif, Nos. 14-20-00731-CV & 14-20-
00732-CV, 2020 WL 7013339 (Tex. App.—Houston [14th Dist.]
Nov. 25, 2020, order) and Texas Rule of Appellate Procedure 52.3(k),
and 52.7(a). See Tex. R. App. P. 42.3(c).
Relator filed an amended petition on July 27, 2021, which does not comply
with Texas Rule of Appellate Procedure 52.7(a)(2) regarding any relevant
testimony from the underlying proceeding, including exhibits offered in evidence,
or a statement that no testimony was adduced in connection with the matter
complained. Tex. R. App. P. 52.7(a)(2).
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We said we would dismiss if a compliant amended petition was not filed.
Relator did not file a compliant amended petition. I would dismiss the petition
without reaching the merits.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Jewell, and Spain (Jewell, J., majority).
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