DENIED and Opinion Filed July 25, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00686-CV
IN RE ENERGY TRANSFER LP (FORMERLY KNOWN AS ENERGY
TRANSFER OPERATING, L.P.) AND ETC TEXAS PIPELINE, LTD.,
Relators
Original Proceeding from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-03837
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Breedlove
Opinion by Justice Breedlove
Before the Court is relators’ July 12, 2023 petition for writ of mandamus
wherein relators challenge a trial court’s purported ruling granting a motion to
compel the deposition of Kelcy Warren (an apex deposition). Also before the Court
is relators’ July 13, 2023 emergency motion to stay.
Relators’ petition does not comply with the Texas Rules of Appellate
Procedure. The rules require relators to include with their petition “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); see also TEX. R. APP. P. 52.7(a)(1).
The rules also require relators to file with their petition “a properly authenticated
transcript of any relevant testimony from any underlying proceeding, including any
exhibits offered in evidence, or a statement that no testimony was adduced in
connection with the matter complained.” TEX. R. APP. P. 52.7(a)(2).
Here, relators state that “[o]n June 29, 2023, the [trial court] granted [the real
parties in interest’s] motion to compel and ordered the deposition of Mr. Warren. An
order has not been signed yet, but the parties agreed as to the form of an order and
submitted it to the court on July 10.” Relators’ attorney testified in a declaration filed
with their petition that the trial court made “an oral ruling” on June 29, 2023,
indicating that there was a hearing on the motions at issue on that date.
Relators cite no authority and make no argument explaining why this Court
may grant mandamus relief based on an unsigned proposed order, even if the parties
signed the proposed order as agreed as to form. As of the date of this opinion, relators
have not supplemented the record with an order, if any, signed by the trial court.
Although this Court may grant mandamus relief based on an oral pronouncement in
some instances, see In re Oncor Elec. Delivery Co., LLC, No. 05-23-000283-CV,
2023 WL 2643630, at *1 (Tex. App.—Dallas Mar. 27, 2023, orig. proceeding)
(mem. op.), relators also have not provided the Court with a reporter’s record of the
June 29, 2023 hearing at which the oral ruling was made. Additionally, relators
provided neither a transcript of any relevant testimony adduced at that hearing nor
the alternative statement required by rule 52.7(a)(2).
–2–
Regardless, even if relators cured these defects, entitlement to mandamus
relief requires relators to show that the trial court clearly abused its discretion and
that relators lack an adequate appellate remedy. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). After reviewing relators’
petition, the response,1 and the record before us,2 we conclude that relators failed to
demonstrate a clear abuse of discretion.
Accordingly, we deny relators’ petition. See TEX. R. APP. P. 52.8(a).
We also deny relators’ emergency motion as moot.
230686f.p05 /Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
1
The Court received a response to the petition for writ of mandamus from two real parties in
interest without the Court requesting a response.
2
The Court has not considered the documents real parties in interest filed with their response
to supplement the mandamus record. The record before us does not reflect that those documents
were part of the briefing before the trial court when it purportedly ruled on real parties in interest’s
motion to compel.
–3–