Charles A. Spain, Justice

Does a court of appeals have the power to reach the merits of an original proceeding when there is no evidence properly before the court in an appendix or record to support the petition? See Tex. R. App. P. 52. Assuming the court of appeals has subject-matter jurisdiction based on the petition, the answer is yes, but to do so would nonetheless be error. Accordingly, the court must decline to reach the merits and, instead, dismisses the petitions for want of prosecution without prejudice to refiling.

On June 17, 2020, relator Darren T. Hughes filed petitions for writs of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. At the time relator filed the petitions, he was incarcerated in the Harris County jail. In the petitions, relator asks this court to compel the Honorable Randy Roll, presiding judge of the 179th District Court of Harris County, to grant: (1) relator's motion to dismiss his attorney and appoint a public defender; (2) motion to reduce bail; (3) motion to appoint a private investigator; (4) motion for a hearing on all motions; and (5) motion for personal recognizance bond or release due to delay.

To be entitled to mandamus relief on the merits, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks and (2) a clear right to the relief sought. In re Powell , 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). When the conduct of a court is involved, a relator must demonstrate that what the relator seeks to compel involves a ministerial act, rather than a discretionary act. Id. at 495. A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry , 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).

Relator's petitions, however, are deficient on procedural grounds for three reasons. First, relator has not certified that "he or she has reviewed the petition[s] and concluded that every factual statement in the petition[s] is supported by competent evidence included in the appendix or record." See Tex. R. App. P. 52.3(j). Second, relator has not provided (1) "a certified or sworn copy of any order complained of, or any other document showing the matter complained of," or (2) filed "a certified or sworn copy of every document that is material to the relator's claim[s] for relief and that was filed in any underlying proceeding," and third, relator has not provided "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[s] complained." See Tex. R. App. P. 52.3(k)(1) (appendix), 52.7(a) (record). Simply put, there is no evidence properly before this court and not even a certification that the petitions are supported by competent evidence.

The argument to cut through the "red tape" and reach the merits is extremely tempting. But this is a court, and procedural due process is real. Ignoring procedure and reaching the merits when the court has no evidence properly before it is a test of this court's self-restraint. When cases are not properly before the court of appeals, the answer to what the court should do is clear, even if it is frustrating.

Accordingly, the court dismisses relator's petitions for writs of mandamus without prejudice to refiling petitions curing the above-identified deficiencies.

( Wise, J., concurring).

CONCURRING OPINION

Ken Wise, Justice, concurring.

I write separately because the majority does not follow this court's binding precedent by failing to address the issue that relator raises in his petition.

As stated by the majority, relator expressly and specifically requests that we compel the trial court to grant five enumerated motions. We cannot grant relator this relief. This court holds that, while we have jurisdiction to direct the trial court to rule on properly pending motions, we may not tell the trial court how to rule. See In re Ramos , 598 S.W.3d 472, 474 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (declining to direct trial court to how to rule on properly pending motion for nunc pro tunc). This law is well-settled and our sister courts hold similarly. See, e.g., In re Thrasher , No. 07-09-00418-CV, 2019 WL 7342239, at *1 (Tex. App.—Amarillo Dec. 30, 2019, orig. proceeding) (mem. op.) (denying petition for writ of mandamus because appellate court did not have authority to tell trial court how to rule on motion for release from prison pending before it). The petition could be denied on this ground alone. However, the majority goes further and transforms relator's stated request into a complaint that the trial court has failed to rule on his purportedly pending motions. That is not the relief relator actually seeks.

Additionally, even if relator had requested that we compel the trial court to rule on his pending motions, the majority does not follow our binding precedent. This court has consistently held that a relator in a criminal mandamus proceeding must provide the appellate court with either a file stamped copy of the motion or other proof that the motion is, in fact, filed and pending in the trial court. In re Gomez , 602 S.W.3d 71, 74 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) ; In re Flanigan , 578 S.W.3d 634, 636 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding) ; see also In re Henry , 525 S.W.3d 381, 382 (Tex. App.—[14th Dist.] 2017, orig. proceeding) (holding that relator had not established that his motion was pending in trial court in absence of providing file-stamped copy of motion).

The majority advises relator on how to cure the deficiencies in his petition. However, if relator follows the majority's instructions and files a new petition for writ of mandamus with the unsworn declaration, we still cannot grant the specific relief relator has requested. Even if relator take his cue from the majority, and generally complains that the trial court has not ruled on his motions, relator cannot show that he is entitled to relief with an unsworn declaration. Relator will have to provide a file-stamped copy or other proof that his motion is properly pending in the trial court as his first step in establishing that he is entitled to mandamus relief from this court. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp. , 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (explaining this court is bound by prior panel's holding in absence of intervening higher court decision, contrary en banc decision, or material statutory change).

I would follow this court's binding precedent in denying relator's petition for writ of mandamus.

My name is __________ _________ ___________, my date of birth is _________________, (First) (Middle) (Last) and my inmate identifying number, if any, is ______________. I am presently incarcerated in ________________________ in ____________, __________, _______, ____________. (Corrections unit name) (City) (County) (State) (Zip Code) I declare under penalty of perjury that the foregoing is true and correct. Executed on the _____ day of ________, _______. (Month) (Year) ___________________________ Declarant

Id. § 132.001(e) ; see Tex. R. App. P. 9.10(c) (exempting in court filing related to criminal matter defendant's date of birth and address from redaction requirement for documents filed in criminal cases).