In Re: Struge Cultural Center, Inc. v. the State of Texas ( 2023 )

DENIED and Opinion Filed December 22, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01297-CV
IN RE STRUGE CULTURAL CENTER, INC., Relator
Original Proceeding from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-23-06879-E
MEMORANDUM OPINION
Before Justices Pedersen, III, Nowell, and Miskel
Opinion by Justice Miskel
Before the Court is “Appellee Struge Cultural Center, Inc.’s Emergency
Motion to Review Sufficiency of Security and Motion to Stay Order Granting Stay
of Default Judgment Without Security,” filed in a pending restricted appeal in Cause
No. 05-23-01134-CV. We construe this motion as a petition for writ of mandamus.
In its petition, as we construe it, relator challenges a trial court’s December
18, 2023 “Order Granting Defendants’ Motion to Stay Judgment Pending Appeal”
in a garnishment proceeding (Cause No. CC-23-06879-E) staying a default judgment
in Cause No. CC-23-03905-E. Relator contends that the trial court had no
jurisdiction to issue the December 18, 2023 order in the garnishment proceeding and
otherwise abused its discretion by issuing the order.
Entitlement to mandamus relief requires a relator to show that the trial court
clearly abused its discretion and that the relator lacks an adequate appellate remedy.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). Relator bears the burden of providing the Court with a record sufficient
to show it is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)
(orig. proceeding); see also TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Relator’s petition does not comply with the Texas Rules of Appellate
Procedure. See, e.g., TEX. R. APP. P. 52.1, 52.2, 52.3(a)–(k), 52.7(a). For instance, a
petition seeking mandamus relief must include a certification stating that the relator
“has reviewed the petition and concluded that every factual statement in the petition
is supported by competent evidence included in the appendix or record.” TEX. R.
APP. P. 52.3(j). Relator’s petition lacks this required certification.
Additionally, rule 52.3(k)(1)(A) requires a relator to file an appendix with its
petition that contains “a certified or sworn copy of any order complained of, or any
other document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A).
Rule 52.7(a) requires the relator to file with its petition “a certified or sworn copy of
every document that is material to the relator’s claim for relief that was filed in any
underlying proceeding,” and either “a properly authenticated transcript of any
relevant testimony from any underlying proceeding, including any exhibits offered
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in evidence, or a statement that no testimony was adduced in connection with the
matter complained.” TEX. R. APP. P. 52.7(a)(1), (2). None of the documents included
with relator’s petition are certified or sworn copies. Moreover, the petition reflects
that a hearing was held on the motion at issue, but relator did not provide a transcript
of any testimony from that hearing or the alternative statement required by rule
52.7(a)(2).
Finally, relator failed to support all arguments and statements of fact with
appropriate citations to the appendix or record. See TEX. R. APP. P. 52.3(g), (h). For
instance, relator’s petition references a purported upcoming trial in a forcible-entry-
and-detainer action and argues that it is facing imminent harm. But relator does not
support these factual statements and arguments with citations to support in the
purported record.
Accordingly, we deny relator’s petition for writ of mandamus. To the extent
relator asks for any emergency relief in its petition, the request is denied without
prejudice. See TEX. R. APP. P. 10.1(a).
/Emily Miskel/
231297f.p05 EMILY MISKEL
JUSTICE
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