Opinion
No. 01-03-01229-CV
Opinion issued January 7, 2004.
Original Proceeding on Petition for Writ of Mandamus.
Panel consists of Justice NUCHIA, ALCALA, and HANKS.
MEMORANDUM OPINION
Relator Arthur Johnson has filed a petition for a writ of mandamus.
The underlying lawsuit is Johnson v. Johnson, No. 2002-56859 (164th Dist. Ct., Harris County, Tex., vexatious — litigant order signed Feb. 4, 2003). The real party in interest is Barbara Chumley, official court reporter of the 164th District Court of Harris County, Texas. Johnson v. Johnson has been appealed to this Court in cause number 01-03-00209-CV. Relator Johnson has previously filed petitions for writs of mandamus arising out of the underlying lawsuit in cause numbers 01-03-00743-CV and 01-03-00744-CV.
On December 17, 2003, this Court issued the following order:
It is ordered that the petition for a writ of mandamus is struck. See TEX. R. APP. P. 9.4(i). The petition does not conform to the following Texas Rules of Appellate Procedure: 52.3(a) (requiring complete list of all parties, including real party in interest, with names and addresses of all counsel); 52.3(b) (requiring table of contents); 52.3(c) (requiring index of authorities); 52.3(d) (requiring statement of case); 52.3(e) (requiring statement of jurisdiction [relator's citation to Government Code section 552.321 is inapplicable to the facts of this original proceeding]); 52.3(f) (requiring issues or points presented for relief); 52.3(g) (requiring statement of facts); 52.3(h) (requiring clear and concise argument for contentions made); 52.3(j) (requiring appendix containing certified or sworn copy of any order complained of, or any other document showing matter complained of); 52.7(a) (requiring record containing (a) certified or sworn copy of every document that is material to relator's claim for relief and that was filed in any underlying proceeding and (b) properly authenticated transcription 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); and 9.5(e) (requirements for proof of service, including name and address of each person served).
The final deadline to file a conforming petition is 5:00 p.m., January 5, 2004. The conforming petition must be physically received by the Clerk of this Court by that deadline. The Court suspends the application in this case of Texas Rule of Appellate Procedure 9.2 — the mailbox rule — to this deadline to file a conforming petition. See TEX. R. APP. P. 2. If relator chooses to send the conforming petition by mail or some other service, then it is relator's responsibility to ensure that the Clerk of this Court receives the conforming petition in her office by that deadline. If a conforming petition is not filed by the deadline, then the Court may dismiss the petition for want of prosecution without further notice.
The Clerk of this Court notified Johnson of the Court's order.
On January 5, 2004, Johnson resubmitted his petition with the Clerk of this Court. Among other things, Johnson's January 5, 2004 petition does not correct the following errors specifically identified in the Court's December 17, 2003 order:
The petition does not conform to the following Texas Rules of Appellate Procedure: . . . 52.3(j) (requiring appendix containing certified or sworn copy of any order complained of, or any other document showing matter complained of); 52.7(a) (requiring record containing (a) certified or sworn copy of every document that is material to relator's claim for relief and that was filed in any underlying proceeding and (b) properly authenticated transcription 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). . . .
Johnson's January 5, 2004 petition, therefore, does not have an appendix and record that conform to the requirements of the Texas Rules of Appellate Procedure 52.3(j) and 52.7(a).
The Court identified the errors to be corrected by Johnson and stated a deadline for Johnson to resubmit a conforming petition. Johnson filed another nonconforming document. Accordingly, the Court strikes Johnson's January 5, 2004 petition for a writ of mandamus and prohibits Johnson from filing a further petition in cause number 01-03-01229-CV. See TEX. R. APP. P. 9.4(i) (authorizing court to prohibit party from filing further nonconforming documents of same kind).
The Court dismisses this original proceeding for want of prosecution. All pending motions are denied.