in Re Aquila Norvell ( 2020 )

Petition for Writ of Mandamus Dismissed and Opinion filed October 6, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00648-CV
IN RE AQUILA NORVELL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
309th District Court
Harris County, Texas
Trial Court Cause No. 2019-70099
OPINION
On September 21, 2020, relator Aquila Norvell filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the Honorable Linda Marie
Dunson, presiding judge of the 309th District Court of Harris County, to vacate her
July 13, 2020 order appointing relator as the child’s possessory conservator and
appointing the child’s great-grandmother as the child’s sole managing conservator.
This is relator’s fourth petition asking for the same relief. This court dismissed
relator’s first three petitions for failure to comply with the requirements of Texas
Rule of Appellate Procedure.1 Relator has not cured all deficiencies. Relator has not
provided “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)(2).2
On the surface, one could question why the court does not simply reach the
merits after relator has filed four petitions. But were this an appeal with no clerk’s
record, no one familiar with appellate procedure would question the court dismissing
the appeal for want of prosecution if the appellant did not make satisfactory
arrangements with the clerk to pay the fee for the clerk’s record and was not entitled
to appeal without paying the fee. See Tex. R. App. P. 35.3(a)(2), 37.3(b), 42.3(b).
This court has recently written in original proceedings arising out of a criminal
case on the necessity of a proper record. See In re Hughes, Nos. 14-20-00442-CR,
— S.W.3d —, 14-20-00443-CR & 14-20-00444-CR, 2020 WL 5049341, at *1 (Tex.
App.—Houston [14th Dist.] Aug. 27, 2020, orig. proceeding). In Hughes this court
identified the necessary procedural requirements as follows: (1) certifying that
relator “has reviewed the petition and concluded that every factual statement in the
1
See In re Norvell, No 14-20-00619-CV, 5522851, at *1 (Tex. App.―Houston [14th Dist.]
Sept. 15, 2020, orig. proceeding) (mem. op.); In re Norvell, 14-20-00564-CV, 2020 WL 5189950,
at *1 (Tex. App.―Houston [14th Dist.] Sept. 1, 2020, orig. proceeding) (mem. op.); In re Norvell,
No. 14-20-00542-CV, 2020 WL 4689395, at *1 (Tex. App.―Houston [14th Dist.] Aug. 13, 2020,
orig. proceeding) (mem. op.).
2
Relator has an appeal from the July 13, 2020 order pending in this court in case number
14-20-00584-CV.
2
petition is supported by competent evidence included in the appendix or record”; (2)
providing (a) “a sworn or certified copy of any order complained of, or any other
document showing the matter complained of” and (b) “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,” id. (quoting Tex. R. App. P. 52.3(k)(1) (appendix);
52.7(a)(1))3, and (3) providing “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[s] complained.” Id. (quoting Tex. R. App. P. 52.7(a)(2)). Absent
extraordinary circumstances, we see no reason not to follow the same procedure in
original proceedings that are civil in nature. Regardless of whether the case is
brought to the court of appeals by an appeal or an original procedure, it is
fundamental that the court have a proper record before reaching the merits.
Accordingly, we dismiss relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Spain, Hassan, and Poissant.
3
The legislature has provided an alternate method of meeting the requirement of sworn
copies—an unsworn declaration. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001. An unsworn
declaration must be in writing and subscribed by the person making the declaration as true under
penalty of perjury. Id. § 132.001(c).
3