Opinion
NO. 14-20-00442-CR NO. 14-20-00443-CR NO. 14-20-00444-CR
08-27-2020
IN RE DARREN T. HUGHES, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
179th District Court Harris County, Texas
Trial Court Cause Nos. 1660162 , 1660163 & 1494203
CONCURRING OPINION
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, 626 (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.
/s/ Ken Wise
Justice Panel consists of Justices Wise, Bourliot, and Spain. (Spain, J., majority).
Publish—Tex. R. App. P. 47.2, 52.8(d).