in Re: James Alan Barnes ( 2022 )

DISSENT; Opinion Filed November 23, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00938-CV
IN RE JAMES ALAN BARNES ET AL., Relators
Original Proceeding from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-15204
DISSENTING OPINION
Opinion by Justice Pedersen, III
This Court may not address the merits of any petition for writ of mandamus
absent strict compliance with Rule 52 of the Texas Rules of Appellate Procedure.
See TEX. R. APP. P. 52 (“original proceedings”); In re Barnes, 653 S.W.3d 345, 346
(Tex. App.—Dallas 2022, orig. proceeding) (Pedersen, III, dissenting). Relators fail
to comply with Rule 52, as the majority concedes. See Majority Op., 6-10.
The majority recites that this Court may not “cut through the ‘red tape’ and
reach the merits when the record is defective.” Majority Op., 6-7 (quoting In re
Meehan, No. 05-21-00337-CV, 2021 WL 2943938, at *1 (Tex. App.—Dallas July
13, 2021, orig. proceeding) (mem. op.)). Yet the majority does exactly that. The
majority explains at length why relators fail to carry their burden to provide this
Court with a sufficient mandamus record under the Rules and why the record is
without assurance of reliability. See Majority Op., 7-10. Indeed, the majority
explicitly states the reasons for my dissent. See Majority Op., 6-10. The majority
cites two judicial opinions as authority for this departure, Humphreys v. Caldwell,
881 S.W.2d 940 (Tex. App.—Corpus Christi-Edinburg 1994, orig. proceeding) and
In re Christus Santa Rosa Health System, 492 S.W.3d 276 (Tex. 2016) (orig.
proceeding). Humphreys is an opinion of the Thirteenth Court of Appeals that does
not involve mental-health records but instead involves discovery of an insurance
company’s claim file, similar lawsuits, administrative complaints, and personnel
files. See Humphreys, 881 S.W.2d at 942, 945. In that case, our sister court overruled
a motion for leave to file a petition for writ of mandamus because, in part, the relator
failed to comply with Rule 52. See Humphreys, 881 S.W.2d at 943. In re Christus
Santa Rosa Health Systems, cited by the majority as authority to deviate from Rule
52 requirements, is closer to these facts. That case involved an order compelling
production of the health system’s medical peer review committee’s records
pertaining to a surgery. See In re Christus Santa Rosa Health Sys., 492 S.W.3d at
277. In the entire opinion there is no reference to either compliance or
noncompliance with Texas Rule of Appellate Procedure 52. Neither of these cases
remotely suggests the existence of an exception to compliance with Rule 52.
Accordingly, I would follow Texas Rule of Appellate Procedure 52 and this
Court’s precedent and deny mandamus relief without addressing the merits. See TEX.
–2–
R. APP. P. 52.7(a)(1); In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008,
orig. proceeding) (“Because we conclude relators’ petition and record are not
authenticated as required by the Texas Rules of Appellate Procedure, we DENY the
petition for writ of mandamus.”).
I respectfully dissent.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE
220938DF.P05
–3–