in Re Scott Kelley, Michael Afshari and Michael Silva ( 2022 )

Motion Granted and Order and Dissent to Order filed November 29, 2022.
In The
Fourteenth Court of Appeals
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NO. 14-22-00869-CV
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IN RE SCOTT KELLEY, MICHAEL AFSHARI, AND MICHAEL SILVA,
Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
80th District Court
Harris County, Texas
Trial Court Cause No. 2011-32592
DISSENT TO ORDER
Is this court required to follow the Texas Rules of Appellate Procedure? Or
are the procedural rules optional, subject to this court’s discretion?
There appears to be no mandamus record filed in this original proceeding.
See 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.”). There is a 1,060-page appendix which
does not appear to contain documents that are authenticated by being certified or
sworn to or the subject of an unsworn declaration. See Tex. R. App. P. 52.3(k); see
also Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (authorizing unsworn
declarations). While a mandamus appendix that contains everything that a
mandamus record must contain would be misnomered, it would be otherwise
sufficient. The difficulty here is that it appears there is no authenticated record on
which this court can determine the merits of this petition.
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 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).
Presumably relators could swiftly authenticate the mandamus record, including
filing “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.” See
Tex. R. App. P. 52.7(a)(2). But the court gives relators no such notice.
I dissent from the court’s failure to provide notice and an opportunity to
cure. I would not rule on the motion for temporary relief at this time. I express no
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opinion on the merits of the petition for writ of mandamus.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain (Spain,
J., dissenting)
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