in Re Erskin K. Harris ( 2021 )

Petition for Writ of Mandamus Denied and Memorandum Majority and
Dissenting Opinions filed October 14, 2021.
In The
Fourteenth Court of Appeals
NO. 14-21-00524-CR
NO. 14-21-00525-CR
IN RE ERSKIN K. HARRIS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
182nd District Court
Harris County, Texas
Trial Court Cause Nos. 745707 & 737811
MEMORANDUM DISSENTING OPINION
Here we go again with imposing “extra rules” that block access to justice by
requiring individuals acting pro se who are in jail or prison to “present” the
relevant motion or application to the trial court judge and that a filed-marked copy
of the relevant motion or application must be part of the mandamus record. See 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); In re Marshall,
No. 14-20-00318-CR, 2020 WL 3467262 (Tex. App.—Houston [14th Dist.] June
25, 2020, no pet.) (mem. op., not designated for publication) (orig. proceeding)
(Spain, J., concurring). In each of the cited cases there was a valid reason to not
grant the requested relief, yet this court nonetheless disposed of the cases on the
“extra rules” that are supported only in caselaw, not by reasoned authority.
In these two petitions for a writ of mandamus, relator has not complied with
actual rules, Texas Rule of Appellate Procedure 52.3(j) and 52.7(a). Tex. R. App.
P. 52.3(j) (“The person filing the petition must certify that he or she has reviewed
the petition and concluded that every factual statement in the petition is supported
by competent evidence included in the appendix or record.”) (emphasis added);
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). Because the Code Construction Act
applies to the Texas Rules of 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”). That is a legitimate reason—based on
legitimate rules—to not grant relator’s requested relief.
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Persisting in my view that our duty as judges is to reach a decision on the
merits based on a proper record and that 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 relator 45-days notice
of involuntary dismissal for failure to comply with Texas Rule of Appellate
Procedure 52.3(j) requiring relator to certify that he or she has reviewed the
petition and concluded that every factual statement in the petition is supported by
competent evidence included in the appendix or record and 52.7(a) requiring (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. Tex. R. App. P. 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); see also Tex. R. App. P.
52.3(k)(1) (necessary contents of petition); Tex. Civ. Prac. & Rem. Code Ann.
§ 132.001 (authorizing unsworn declarations).1
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I realize the difficulty a pro se, incarcerated relator has in complying with these Rules
52.3(j) and 52.7(a), but original proceedings have been filed by pro se, incarcerated relators in
this court that do comply with those rules. I have no idea how a relator could comply with the
“extra rules” if the trial court and trial-court clerk do not furnish filed-marked copies. My view
of due process and due course of law is not restricted so narrowly as offering a pro se,
incarcerated relator access to justice only if public officials voluntarily assist a relator in a
proceeding in which the actions of public officials are being questioned.
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I dissent from the court’s failure to provide notice and an opportunity to cure
in each of these two petitions for a writ of mandamus.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).
Do Not Publish — Tex. R. App. P. 47.2(b).
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