Opinion
14-21-00397-CV
07-22-2021
IN RE CHRISTOPHER BOYKIN, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS 280th District Court Harris County, Texas Trial Court Cause No. 2021-10118
Panel consists of Chief Justice Christopher and Justices Spain and Hassan.
MEMORANDUM MAJORITY OPINION
Tracy Christopher, Chief Justice.
On July 19, 2021, relator Christopher Boykin filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App.P. 52. In the petition, relator asks this Court to compel the Honorable Barbara Stadler, presiding judge of the 280th District Court of Harris County, to stay the implementation of an oral pronouncement indicating an intent to hold relator in civil contempt in an order that has not yet been signed, to discharge relator from the requirements of the future order, and to declare the anticipated order beyond the authority of the trial court and void.
Mandamus is an extraordinary remedy that will issue only if (1) the trial court clearly abused its discretion and (2) the party requesting mandamus relief has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against its detriments. Id. at 136. In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. Id.
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). Because relator cannot be held in contempt for violating an oral pronouncement until it is reduced to a signed order, neither the mandamus nor the motion to stay are ripe. As such, relator has not and cannot establish at this time that the trial court abused its discretion.
Because no order exists holding relator in contempt, his petition for a writ of mandamus and motion to stay are denied without prejudice to refiling if or when a contempt order is signed.
MEMORANDUM DISSENTING OPINION
Charles A. Spain, Justice.
I have concluded previously that, when a relator does not submit a record complying with Texas Rule of Appellate Procedure 52, the proper remedy is to give the relator notice and an opportunity to cure the deficiency and, if the relator does not do so, dismiss the proceeding. See generally In re Kholaif, Nos. 14-20-00731-CV & 14-20-00732-CV, 2020 WL 7013339 (Tex. App.-Houston [14th Dist.] Nov. 25, 2020, no pet.) (order). That is the policy we scrupulously follow in appeals when there is no clerk's record filed due to appellant's fault, Tex.R.App.P. 37.3(b), and I see no reason to reach the merits of an original proceeding when we do not have a record that conforms to Texas Rule of Appellate Procedure 52.7.
While I strongly believe that decisions on the merits must be based on a proper record, I also acknowledge that the 1997 Texas Rules of Appellate Procedure did practitioners no favors by not creating specific counterparts in Rule 52 to Rules 37.3(b) and 42, which address dismissals of appeals. But that unfortunate gap in the appellate rules does not authorize this court to take action on the merits in the absence of a proper record.
Because the court denies relief without giving relator notice of the problems with the original-proceeding record and an opportunity to cure, I respectfully dissent. I express no opinion on the merits of this original proceeding.