IN THE
TENTH COURT OF APPEALS
No. 10-16-00271-CV
IN RE JERRY A. BULLIN, INDIVIDUALLY, CJB PARTNERS, LTD.,
AND ITS GENERAL PARTNER CJB PARTNERS MANAGEMENT,
LLC, AND BRE GROUP, LTD
Original Proceeding
and
No. 10-16-00343-CV
IN RE TEXAS PRIVATE SCHOOLS FOUNDATION, INC. D/B/A
ALLEN ACADEMY
Original Proceeding
DISSENTING OPINION
This pair of mandamus proceedings presents an interesting problem. The problem
is record related. Some people would characterize the problem as procedural. Some
people would characterize the problem as a merits related, or substantive, issue. But both
relators and the real-parties-in-interest, which are reversed in the two proceedings,
believe, based upon statements in their briefing, that we have in front of us Bullins’ tax
returns that have not been redacted for the years 2008 to 2013, inclusive. We do not. I
would order the nominal party to these proceedings, the respondent trial court judge, to
forward to this Court the documents tendered for in-camera review.
In another proceeding, we had a similar problem in endeavoring to determine
what documents were actually tendered to the trial court that were still at issue in the
discovery dispute. In a very detailed order, we specified the procedure to make sure that
we were looking at the documents that were in issue. A copy of that order is attached to
this dissenting opinion as an appendix. We ordered the party in possession of the
documents to prepare a tabbed notebook and present it to the respondent trial court
judge, and ordered the judge to certify that those were the documents he had been
tendered, reviewed, and upon which his discovery order was based. He forwarded that
notebook directly to this Court. In this manner, this Court knew for certain that the
documents we were reviewing in camera were the same documents tendered to the trial
court for in camera review.
There is no specified procedure for how documents tendered in camera are
maintained in the trial court and then submitted to the appellate court at the appropriate
time if needed. There is a sub-committee of the Texas Supreme Court Rules Advisory
Committee that is examining this procedural problem. But lacking a clear procedure,
In re Jerry A. Bullin
In re Texas Private Schools Foundation, Inc. Page 2
neither of these parties should suffer a summary denial of their mandamus petition
simply because they are both operating under the misconception that the documents
tendered for review by the trial court mysteriously made their way to the appellate court
in this mandamus proceeding. They did not.
Thus, I cannot join the denial of these mandamus petitions at this time. Without
seeing what both parties think is in front of us, and without the Court notifying the parties
of this issue and ordering that the materials be placed before us in some fashion, I must
respectfully dissent to the denial of the petitions at this time.
TOM GRAY
Chief Justice
Dissenting opinion issued and filed August 2, 2017
In re Jerry A. Bullin
In re Texas Private Schools Foundation, Inc. Page 3
APPENDIX
IN THE
TENTH COURT OF APPEALS
No. 10-16-00374-CV
IN RE MID-CENTURY INSURANCE COMPANY
Original Proceeding
ORDER
Relator’s Petition for Writ of Mandamus was filed on November 9, 2016. Relator
submitted over 1200 pages to the trial court and this Court for an in-camera review. The
privilege log submitted with the petition identifies approximately 500 pages.
Relator is Ordered to prepare a privilege log for only the documents that remain
in dispute in this proceeding and attach a hard copy of each document; the privilege log
must be placed in a notebook(s) which must also contain the hard copy of each document
identified in the privilege log; and each in-camera document submitted in the notebook(s)
must be separated by a tab numbered to match the line item of the description in the
privilege log.
The completed notebook(s) must be delivered to the trial court within 21 days of
the date of this Order. Within 21 days of the date of receipt of the notebook(s), the trial
court must verify that the documents contained in the notebook(s) are the same
documents that the trial court ordered produced. The notebook(s) must then be
forwarded to this Court directly from the trial court within 7 days from the date of the
trial court’s verification as described above.
The failure of relator to comply with this Order will result in the dismissal of
relator’s petition.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Order issued and filed February 8, 2017
In re Mid-Century Insurance Company Page 2