IN THE
TENTH COURT OF APPEALS
No. 10-15-00235-CR
IN RE MATTHEW ALAN CLENDENNEN
Original Proceeding
ORDER
Relator Matthew Alan Clendennen’s Petition for Writ of Mandamus was filed on
July 1, 2015. There are numerous procedural deficiencies with the petition and the
associated appendix.
The petition was not properly certified. See TEX. R. APP. P. 52.3(j) (“The person
filing the petition must certify that he or she has reviewed the petition and concluded
that every factual statement in the petition is supported by competent evidence
included in the appendix or record.”).
Accordingly, relator is ORDERED to electronically file and electronically serve a
proper certification of the petition with this Court by 5:00 p.m. on July 23, 2015.
Relator’s failure to timely comply with this Order will result in the denial of this
petition without further notice from the Court. Further, although the petition was
electronically filed as required by Rule 9.2(c)(1), it was not electronically served as
required by Rule 9.5(b)(1). See TEX. R. APP. P. 9.2(c)(1); 9.5(b)(1)(“Attorneys in criminal
cases must electronically file documents…;” “A document filed electronically under
Rule 9.2 must be served electronically through the electronic filing manager if the email
address of the party or attorney to be served is on file with the electronic filing
manager.”). Because the petition contains proof of service, the Court uses Rule 2 of the
Texas Rules of Appellate Procedure to dispense with the electronic service requirement
for this isolated instance. Id. 2 (“an appellate court may - to expedite a decision or for
other good cause - suspend a rule's operation in a particular case and order a different
procedure….”).
The appendix, which was filed separately from the petition on July 2, 2015, was
not electronically filed as required by Rule 9.2(c)(1). See TEX. R. APP. P. 9.2(c)(1)
(“Attorneys in criminal cases must electronically file documents….”). An exception
from this Rule may be requested in a motion filed with the appellate court showing
good cause. Id. (“Attorneys in criminal cases must electronically file documents except
for good cause shown in a motion filed in the appellate court.” (Emphasis added)). Relator’s
attorney did not file a motion requesting an exception from this Rule. The appendix
also does not contain proof of service as required by Rule 9.5(d). See id. 9.5(d) (“A
In re Clendennen Page 2
document presented for filing must contain a proof of service in the form of either an
acknowledgment of service by the person served or a certificate of service.”). Further, it
is unclear whether the documents contained in Exhibits 1, 2, and 5 have been certified
or sworn as required by Rule 52.3. See id. 52.3(k)(1)(A) (“The appendix must contain: ...
a certified or sworn copy of any order complained of, or any other document showing
the matter complained of….”). We consider the copy of the news reports video
attached as Exhibit 5 to be a “document” under the Rule.
Accordingly, relator is ORDERED to electronically file and electronically serve
the appendix, providing proper proof of service of the appendix, and electronically file
and electronically serve, providing proper proof of service, certified copies of Exhibits 1,
2, and 5 or a sworn declaration that the copies already provided are true and correct
with the Court by 5:00 p.m. on July 23, 2015. Should relator require an exception to this
Order, relator must electronically file and electronically serve a motion requesting such
exception showing good cause and provide proper proof of service to the Court by the
same date and time set out above. Relator’s failure to timely comply with this Order
will result in the denial of this petition without further notice from the Court.
No record has been filed with the petition as required by Rule 52.7. See TEX. R.
APP. P. 52.7(a). Accordingly, relator is ORDERED to electronically file and
electronically serve the record, providing proper proof of service, with the Court by 5:00
p.m. on July 23, 2015. Should relator require an exception to this Order, relator must
In re Clendennen Page 3
electronically file and electronically serve a motion requesting such exception showing
good cause and provide proper proof of service to the Court by the same date and time
set out above. Relator’s failure to timely comply with this Order will result in the denial
of this petition without further notice from the Court.
Because the subject of the petition is a “gag” order, the relator’s attention is
drawn to the exception from the filing of documents to which access is otherwise
restricted by law or court order. See TEX. R. APP. P. 9.2(c) (“Documents filed under seal,
subject to a pending motion to seal, or to which access is otherwise restricted by law or
court order must not be electronically filed.”).
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Order issued and filed July 7, 2015
In re Clendennen Page 4