Appellant, Lynn Murphy Creel, appeals a dismissal of his petition for Writ of Mandamus by the trial court. Contending that appellee, the District Attorney for Medina County, Texas, refused to release a certain public record pertinent to the appellant, appellant filed a Writ of Mandamus to force the release of the public record. The Petition for Writ of Mandamus was summarily dismissed by the trial court without a hearing, and this appeal ensued.
The dispositive issue is whether it was a denial of fundamental due process for the trial court to summarily dismiss appellant's cause of action without either a motion or a hearing. Tex.R.App.P. 90(a). The majority would affirm the judgment. I respectfully dissent.
"A fundamental requirement of due process is 'the opportunity to be heard.' " Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), citingGrannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). "It is an opportunity which must be granted at a meaningful time and in a meaningful manner."Armstrong, 380 U.S. at 552, 85 S.Ct. at 1191. "The right of a party to be present at a trial and be heard is fundamental, and failure to give adequate notice of a trial setting constitutes lack of due process." Bloom v.Bloom, 767 S.W.2d 463, 466 (Tex.App. — San Antonio 1989, writ denied).
In a recent case, the Texas Supreme Court stated that even if proper notice and a hearing was provided a party, if a trial court ". . . implicated itself in misleading [the party] as to the format for proof, . . . the court effectively deprived [the party] of its fundamental due process right to notice and a hearing," and accordingly, the court's order must be vacated.Union Carbide Corp. Et Al. v. Moye, 798 S.W.2d 792-793 (Tex. 1990). Moreover, the court has long since concluded ". . . that under the plain wording of Rule 245 [TEX.R.CIV.P.] there must be at least ten days notice to the parties of a setting in a contested suit." Morris v. Morris, 554 S.W.2d 792 (Tex.App. — San Antonio 1977, no writ). Thus "[t]he trial court could have fully accorded this right [to be heard] to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean." Armstrong, 380 U.S. at 552, 85 S.Ct. at 1191.
The record here consists only of the transcript and a notation from the court reporter that no evidence was taken and no statement of facts was available. The transcript clearly indicates that this was a contested suit, and that no notice of the trial setting, ten (10) days or otherwise, was ever given to any of the parties. Further, the court order, dismissing the Petition for Writ of Mandamus, fails to indicate that any notice was given to any party. Moreover, the appellant alleged in his verified affidavit below, which was attached to his motion for new trial, and included in his brief before this court, that he was never given notice of a trial setting. Appellee's brief also fails to challenge appellant's contention that he was never given notice of any setting, which we will accept as correct since it is not in conflict with the record. TEX.R.APP.P. 74(f).
Clearly, the only way the trial judge here could have afforded the petitioner his fundamental right to be heard was to grant a new trial and "wipe the slate clean."Armstrong, 380 U.S. at 552, 85 S.Ct. at 1191. The judgment should be reversed and remanded for a new trial.
*Page 632 The majority holds that no hearing was required for the trial court to dismiss appellant's cause of action. I disagree.
"Mandamus is a legal proceeding and although extraordinary, the Rules of Civil Procedure are applicable." Vondy v.Comm'rs Court of Uvalde County, 620 S.W.2d 104, 108 (Tex. 1981). While mandamus jurisdiction is not used to substitute the discretion of the district court for that of the public officials, original mandamus jurisdiction over county officials is vested in the district court in the exercise of its general supervisory control. Id. at 109.
Additionally, the language of the Texas Supreme Court inThorne v. Moore, 101 Tex. 205, 105 S.W. 985, 986 (1907), is particularly instructive to this issue. Concluding that the district court had mandamus power, the Supreme Court approved the following description of the mandamus procedure, and cautioned against abuses by the trial court, stating:
* * * * * *"The [mandamus] relief sought to be effected through its aid is asked, as in any other case, by a petition alleging the facts by virtue of which it is claimed, with a prayer for such judgment as the facts warrant. The defendant is served and required to answer as in any other suit, and the case proceeds to trial and judgment as any other action, and there is no distinguishable difference in principle in the course of proceeding and result attained in it and any other suit in the district court. When the judgment is rendered by the court, unless superseded or suspended by writ of error or appeal, it is carried into effect by the appropriate writ for this purpose, termed in the statute a 'writ of mandamus,' from analogy, no doubt, drawn from the nature of the matters complained of in the petition to cases in which relief is granted by this writ at common law. Plainly, then, unless we discard principles, and are controlled merely by names, it must be treated and regarded as a judicial writ, based upon and issuing by virtue of, and to carry into effect, a judgment of the district court. And so it has been in effect by the Supreme Court of the United States."
The [mandamus] power lodged with the district judge is not an arbitrary one. He is the same officer that exercises the power when presiding over the court and acts judicially after a hearing in the same manner in which the court acts. (Emphasis added.)Thorne, 105 S.W. at 986-987.
Rule 694 simply provides that "[n]o mandamus shall be granted by the district or county court on ex parte hearing, and any peremptory mandamus granted without notice shall be abated on motion." TEX.R.CIV.P. 694. On the other hand, appellate rule 211 provides for a more elaborate process with specific authority given to the appellate courts to deny leave to file the mandamus, and with submission necessary only if leave to file has been granted. TEX.R.APP.P. 211. Obviously, the intention of the legislature was to differentiate between the authority granted to the appellate courts and the lower courts with regards to granting or denying leave to file writs of mandamus. The majority opinion here, would grant the defendant below rights that the law specifically denies the plaintiff. Where rule 694 specifically prohibits the trial court from granting a mandamus without notice, the majority would give the trial court plenary authority to deny the mandamus without notice.
Although the eventual results here may very well be that the matter is moot, I am unable to find any authority in my research, in appellees' brief, or in the majority opinion to justify the procedure adopted by the trial court. The majority, in effect, is condoning the granting of a summary judgment and dismissing the plaintiff's cause of action, without requiring a motion for summary judgment or summary judgment evidence, without setting or having a hearing, and without providing the appellant with notice of the hearing or permitting the appellant an opportunity to respond either in writing or orally.
*Page 633 I would reverse and remand the judgment.