In Re: Patrick Roughneen, M.D., Cherie Roughneen and Patrick T. Roughneen, M.D., P.A. v. the State of Texas ( 2024 )

DENIED and Opinion Filed February 7, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00023-CV
IN RE PATRICK ROUGHNEEN, M.D., CHERIE ROUGHNEEN, AND
PATRICK T. ROUGHNEEN, M.D., P.A., Relators
Original Proceeding from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-14053
MEMORANDUM OPINION
Before Justices Reichek, Goldstein, and Kennedy
Opinion by Justice Kennedy
Before the Court is relators’ petition for writ of mandamus. In their petition,
relators contend that the trial court has failed to rule on four pending motions within
a reasonable amount of time.
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). When the requested relief is to compel a trial court to rule on a motion,
the relator must show (1) the trial court had a legal duty to rule on the motion,
(2) relator requested a ruling, and (3) the trial court failed or refused to do so within
a reasonable time. See In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig.
proceeding) (mem. op.). It is the relator’s burden to provide a record sufficient to
establish its right to mandamus 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).
Relators’ petition does not comply with the Texas Rules of Appellate
Procedure. See, e.g., TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1), (2). For instance,
none of the documents included in relators’ appendix or record are properly certified
or sworn copies. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1); see also In re
Romero, No. 05-23-00922-CV, 2023 WL 6226322, at *1 (Tex. App.—Dallas Sept.
26, 2023, orig. proceeding) (mem. op.); In re Lancaster, No. 05-23-00381-CV, 2023
WL 3267865, at *1 (Tex. App.—Dallas May 5, 2023, orig. proceeding) (mem. op.).
Additionally, under Rule 52.7(a)(2), relators were required to file with their petition
either a properly authenticated transcript of any relevant testimony from any
underlying proceeding or a statement that no testimony was adduced in connection
with the matter complained. See TEX. R. APP. P. 52.7(a)(2). Relators provided neither
despite the record reflecting at least eight hearings relevant to the motions at issue.
Even if no testimony was adduced at these hearings, the hearings appear material to
relators’ claim for relief. See TEX. R. APP. P. 52.7(a)(1). Therefore, we also conclude
that relators have failed to carry their burden to provide a record sufficient to
establish entitlement to mandamus relief.
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Accordingly, we deny relators’ petition for writ of mandamus.
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
240023F.P05
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