Petition for Writ of Mandamus Denied and Majority and Dissenting
Memorandum Opinions filed November 19, 2020.
In the
Fourteenth Court of Appeals
NO. 14-20-00561-CV
IN RE SCHKEREZADE MIDKIFF, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
129th District Court
Harris County, Texas
Trial Court Cause No. 2015-07161
DISSENTING MEMORANDUM OPINION
The court should not reach the merits and deny this petition without a record
on which to base its decision.1 Regardless of whether this court either (1) notifies
1
In re Norvell, No. 14-20-00648-CV, 2020 WL 5902928, at *1 (Tex. App.—Houston [14th
Dist.] Oct. 6, 2020, orig. proceeding) (“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.”); In re Hughes, 607 S.W.3d 136,
138 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (dismissing without prejudice when
record is deficient). The court ignores this precedent.
the relator that the petitions will be dismissed unless they are supplemented to
comply with the Texas Rules of Appellate Procedure2 or (2) dismisses without
prejudice to refiling, the court should respect procedural due process and due course
of law and not reach the merits without the record the rules require.
Is constitutional procedural due process and due course of law the most
“efficient” way to run a judicial system? Perhaps not, but judges are elected to follow
the law (including the rules), not pick and choose what works for them. If the court
wants to suspend the rules, then it should be transparent and invoke Texas Rule of
Appellate Procedure 2 and explain why that action is appropriate. See Hughes, 607
S.W.3d at 137 n.1. Otherwise, there is the appearance that the court treats the rules
as mere suggestions.
To the extent the court wants to be more “user friendly” and “efficient,” there
are ways to do that without ignoring the rules. I strongly support such efforts.3 What
2
Tex. R. App. P. 52.3(j) (relator’s certification), 52.3(k)(1) (appendix), 52.7(a)(1)
(documents in record), and 52.7(a)(2) (transcript or statement regarding testimony in record). All
of these are things relator “must” do. The Code Construction Act, which applies to rules adopted
under a code, states “‘Must’ creates or recognizes a condition precedent.” Tex. Gov’t Code Ann.
§§ 22.004 (civil procedure rulemaking power for supreme court), 311.002(4), 311.016(3).
Here, the petition does not contain (1) in the appendix a copy of the trial court’s contested
September 13, 2019 order and (2) certification that relator or her counsel has read the petition and
concluded that the factual statements in the petition are supported by competent evidence in the
record. See Tex. R. App. P. 52.3(k), (j). How can this court reach the merits when the contested
order is not in the record?
3
We could modify eFileTexas.gov to help litigants and lawyers comply with mandatory
procedural rules that are understandably and frequently missed, hopefully reducing problematic
filings. The United States Courts of Appeals have varying degrees of guidance on PACER
(pacer.uscourts.gov) to assist litigants and lawyers in filing in compliance with the rules. There
appears to be no reason for not doing the same in Texas courts other than cost and the willingness
to improve the system.
2
I do not support is ignoring the procedural-due-process and due-course-of-law
requirements written into our rules.
Chief Justice Calvert counseled against ignoring “sound principles of law”
and instead deciding a case on “the practicabilities of a situation,” explaining that
“intellectual integrity ought to be the individual judge’s most compelling force; and
when in [the judge’s] honest judgment sound rules of law are sacrificed to
practicability and expediency, failure to protest is dereliction of duty.” Shepherd v.
San Jacinto Junior Coll. Dist., 363 S.W.2d 742, 760 (Tex. 1962) (Calvert, C.J.,
dissenting).
3
While I agree with my colleagues that “[r]elator has not established that she
is entitled to mandamus relief,” I do so based on a procedural rule that—unless
explicitly suspended—is not discretionary.
/s/ Charles A. Spain
Justice
Panel consists of Justices Christopher, Spain, and Poissant.
4