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noting observation or remark concerning rule, principle or application of law that is not necessary to determination of case is dicta
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NO. 14-20-00731-CV NO. 14-20-00732-CV
11-25-2020
IN RE Somaiah KHOLAIF, Relator
Joseph R. Willie, II, Houston, for Relator. Darlene Payne Smith, Jocelyn Slater, Houston, for Real Party in Interest.
Joseph R. Willie, II, Houston, for Relator.
Darlene Payne Smith, Jocelyn Slater, Houston, for Real Party in Interest.
Panel consists of Chief Justice Frost and Justices Bourliot and Spain
ORDER
Charles A. Spain, Justice
On October 28, 2020, relator Somaiah Kholaif filed a petition for writ of mandamus and a petition for writ of prohibition in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. In the petitions, relator argues that the Honorable Jim F. Kovach, presiding judge of the County Civil Court at Law No. 2 of Harris County, is impermissibly interfering with this court's appellate jurisdiction in an appeal pending in case number 14-20-00218-CV. Relator asks this court to direct Judge Kovach to not issue a writ of possession in the underlying forcible-detainer suit.
Relator's petitions do not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. 52.3(j) (requiring relator to certify that every factual statement in petition is supported by competent evidence in appendix or record); 52.7 (requiring relator to provide authenticated transcript of any relevant testimony from any underlying proceeding, including exhibits offered in evidence, or statement that no testimony was adduced in connection with matter complained).
Rather than dismiss relator's petition for writ of mandamus and petition for writ of prohibition, the court gives all parties ten days’ notice that the petitions will be dismissed for failure to comply with Rules 52.3(j) and 52.7 unless those deficiencies are cured. See generally Tex. R. App. P. 42.3(c).
RESPONSE TO THE DISSENT
The dissent takes issue with the court granting the parties notice before we dismiss this proceeding, instead of denying it outright. While not required under Rules 42.3 or 52, giving notice and an opportunity to be heard before an involuntary dismissal is difficult to characterize as a bad thing. This court has—as doubtless all Texas appellate courts have—on an ad hoc basis notified parties of potential irregularities and given an opportunity to cure. This court routinely gives notice of involuntary dismissal in criminal cases, which Rule 42.4 ("Involuntary Dismissal in Criminal Cases") does not require and is something the court did not always do. See Tex. R. App. P. 42.4. Certainly the practice in these original proceedings of allowing a relator an opportunity to cure a defective record should be followed in similar original proceedings, absent extraordinary circumstances.
As the reasoning of the dissent implicitly challenges the state and federal constitutions’ guarantees of procedural fairness, we respond further below.
Plain meaning of Texas Rule of Appellate Procedure 52.7
Because rules, like statutes, are presumed constitutional unless specifically challenged, the question arises under what circumstances may the court disregard a nondiscretionary rule absent an explicit suspension under Texas Rule of Appellate Procedure 2, other than "because we say so"? Despite the dissent's protestations that it is the court that ignores the plain-meaning rule as applied to the Texas Rules of Appellate Procedure, it is the dissent that concludes that words such as "must" in Rule 52.7 are mere suggestions for the courts of appeals unless an appellate opinion exists saying "must" in the this context means "must." But see Code Construction Act, Tex. Gov't Code Ann. §§ 311.002(4), .016(1), (2), (3) (application of Act to rules and definitions of "may," shall," and "must"); see also Tex. Gov't Code Ann. §§ 22.004 (grant of rulemaking power to supreme court), .108 (grant of rulemaking power to court of criminal appeals). The court rejects that notion that the courts of appeals have the power to ignore the plain meaning of the rules and the implication that the Supreme Court of Texas and Court of Criminal Appeals were oblivious of the Code Construction Act when they wrote and promulgated the current Texas Rules of Appellate Procedure.
Precedent
The other argument the dissent offers is the accusation that the court is ignoring precedent and, by extension, stare decisis. The dissent, however, confuses precedent with a mere statement of the action taken by the court. Not a single one of the cases the dissent cites contains an analysis whatsoever of the difference between the use of "dismiss" versus "deny." This does not even rise to the level of dicta.
But even if this were dicta, the Great Chief Justice almost two centuries ago discussed the weight of such "expressions" in subsequent cases:
It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 399–400, 5 L.Ed. 257 (1821) (Marshall, C.J.). Judge Friendly is perhaps a bit less formal in his discussion of whether an opinion binds the court in future cases: "A judge's power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold’." United States v. Rubin , 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring), aff'd , 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981).
This court has discussed dicta as follows: "Dictum is an observation or remark made concerning some rule, principle, or application of law suggested in a particular case, which observation or remark is not necessary to the determination of the case." Edwards v. Kaye , 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). Dictum is not binding as precedent under stare decisis. Id. (citing Lester v. First Am. Bank, Bryan, Tex. , 866 S.W.2d 361, 363 (Tex. App.—Waco 1993, writ denied) ). Finally, it is worth noting that the mere "repetition of obiter dicta" does not give the dicta "precedential force." Godoy v. Wells Fargo Bank, N.A. , 542 S.W.3d 50, 62 (Tex. App.—Houston [14th Dist.] 2017) (Frost, C.J., dissenting), aff'd , 575 S.W.3d 531 (Tex. 2019).
There is no merit to the dissent's accusation that the court is ignoring precedent. To the contrary, there is explicit precedent addressing this issue that the dissent mentions in the context of pointing out, correctly, that the court did not in those cases give notice of an involuntary dismissal. See In re Norvell , No. 14-20-00648-CV, 610 S.W.3d 598, 599–600 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (per curiam) ; In re Hughes , 607 S.W.3d 136, 137–38 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). Like giving notice of involuntary dismissal in criminal appeals, the fact that the court did not do it before should not stop the court from doing it now.
Texas Rules of Appellate Procedure 42.3 and 52
The dissent's point that Texas Rule of Appellate Procedure 52 does not explicitly authorize dismissal is well taken. See Tex. R. App. P. 52.8 ("Action on Petition"). But Rule 52 contains no procedure similar to Rule 42.3 regarding "Involuntary Dismissal in Civil Cases," which, despite the caption, explicitly discusses dismissing an appeal for either want of jurisdiction, want of prosecution, or because the "appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time." Tex. R. App. P. 42.3.
The dissent does not discuss that this court already dismisses original proceedings for want of jurisdiction without a specific provision in Rule 52 allowing such action. Because this court has already determined that an involuntary dismissal for want of jurisdiction similar to Rule 42.3 is necessary in original proceedings, there can be no serious argument that following the Rule for original proceedings is prohibited. Consistency in procedural matters is no vice, and consistency would offer similar treatment to parties in this court. Following Rule 42.3 would also extend to giving ten days’ notice of the possible involuntary dismissal, as the court does here, which would allow relator an opportunity to cure.
Original proceedings were once considered "extraordinary," and it comes as no surprise that Rule 52 and its predecessors have no dismissal provisions, especially in light of the pre-1997 Texas Rules of Appellate Procedure, which required a motion for leave to file an original procedure. But times have certainly changed, and the Supreme Court of Texas and Court of Criminal Appeals should amend the appellate rules to explicitly allow Rule 42.3 dismissals of original proceedings.
The dissent suggests the pointlessness of the court giving notice. But this is precisely what Rule 42.3 requires in an appeal. And if relator in these original proceedings is not entitled to relief based on a proper record, relator can do nothing and incur no further expense, allowing the original proceedings to be dismissed.
The dissent's real complaint is with the federal and state constitutional procedural-due-process and due-course-of-law protections written into the Texas Rules of Appellate Procedure. To the extent procedural due process and due course of law are a bother, perhaps the drafters thought the benefits outweighed the lost expediencies. See U.S. Const. amend. V ("nor be deprived of life, liberty, or property, without due process of law"), XIV, § 1 ("nor shall any state deprive any person of life, liberty, or property, without due process of law"); Tex. Const. art. I, § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.").
The original-proceeding record
The court starts from the presumption that this court is not above the law, and that the rules do apply. The court must also consider its role as an appellate court. The appellate court does not find facts, but rather decides the issues presented to it based on the universe of facts provided to the court in the record.
Who is responsible for the record in an original proceeding? Texas Rule of Appellate Procedure 52.7 requires the relator to provide the record, rather than the trial-court clerk and court reporter certifying and filing the record as they do in appeals. See Tex. R. App. P. 52.3(k)(1) (appendix), 52.7(a)(1) (documents in record), and 52.7(a)(2) (properly authenticated transcript of any relevant testimony or statement that no testimony was adduced in connection with mattered complained). Thus it is the relator's responsibility to file a proper record in an original proceeding; the real party in interest, of course, can file a supplemental record. Without a record, there is no universe of facts on which the court may base its decision. If the relator does not follow Rule 52.7 and the court does not require compliance, then how can the court know what needs to be known in order to reach a decision on the merits, as the dissent would have us do, much less know whether the court has jurisdiction?
Is this a case in which the court has special powers to discern whether the irregularity of the record is harmless? A notable and somewhat recent commentary by then-U.S. Secretary of Defense Donald Rumsfeld is relevant:
Now what is the message there? The message is that there are no "knowns." There are thing[s] we know that we know. There are known unknowns. That is to say there are things that we now know we [didn't] know. But there are also unknown unknowns. There are things we don't know we don't know. So when we do the best we can and we pull all this information together, and we then say well that's basically what we see as the situation, that is really only the known knowns and the known unknowns. And each year, we discover a few more of those unknown unknowns.
It sounds like a riddle. It isn't a riddle. It is a very serious, important matter.
There's another way to phrase that and that is that the absence of evidence is not evidence of absence. It is basically saying the same thing in a different way. Simply because you do not have evidence that something exists does not mean that you have evidence that it doesn't exist.
Donald Rumsfeld, Press Conference at NATO Headquarters (June 7, 2002) (transcript available at https://www.nato.int/docu/speech/2002/s020606g.htm).
The rules assign the responsibility to the relator to determine the necessary content of the record so that the appellate court can reach a decision. If the relator does not provide the court with a proper Rule 52.7 record and the court does not require compliance, then the court has nothing before it on which to base a decision. The dissent believes the court can bear the responsibility of ascertaining the necessary facts, suggesting the court can know the known knowns and known unknowns. This is a fundamental misunderstanding of this court's role as a factfinder. The rules provide no basis for the court to take notice without a proper record, and in any event, how can the court possibly know the unknown unknowns, meaning knowledge the parties have that the court has no reason to know?
Or the court could simply follow Rule 52.7 and leave the responsibility for the record where the Rule places it—on the relator.
CONCLUSION
Relator's petition for writ of mandamus and petition for writ of prohibition will be dismissed for failure to comply with Rules 52.3(j) and 52.7 unless those deficiencies are cured. See generally Tex. R. App. P. 42.3(c).
( Frost, C.J., dissenting).
DISSENT TO ORDER
Kem Thompson Frost, Chief Justice
Today the majority departs from this court's governing precedent and steps over the court's established procedure to give the relator a second chance to comply with applicable mandamus rules — special treatment not conferred on other litigants in like circumstances. The majority rolls out a new rule of its own under which a panel apparently may opt to give some who have failed to satisfy procedural requirements another bite at the apple while denying that opportunity to others in the same predicament. In taking this course, the majority breaks ranks but does not and cannot change precedent.
It takes an en banc court to change this court's precedent. Today's decision marks a breach of horizontal stare decisis; it does not establish a new procedure. Future panels of this court will be bound by the court's settled precedent unless and until the en banc court votes to change it.
See Glassman v. Goodfriend , 347 S.W.3d 772, 781–82 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc); Johnson v. Harris County , 610 S.W.3d 591, 595–96 (Tex. App.—Houston [14th Dist.] Sept. 29, 2020, no pet.).
See Glassman , 347 S.W.3d at 781–82.
See Johnson , 610 S.W.3d at 595–96.
See id. ; Burnett v. Sharp , 328 S.W.3d 594, 597–98 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
The law gives plenty of reasons to condemn the majority's failure to follow this court's precedent and procedure.
• First , in creating a conflicting rule, the majority sews confusion and uncertainty in the law, making it difficult for the people to know what the law is or how it will be applied.
• Second , by applying a new procedure in lieu of the established one
See Bryan A. Garner , et al. , The Law of Judicial Precedent 11 (2016) (noting the importance in a rule-of-law system of giving people the opportunity to know what the law requires so that they can conform their conduct to meet the law's demands).
(without a decision of the en banc court), the majority fails to treat litigants in like circumstances alike.
• Third , the newly minted procedure conflicts with the plain text of Texas Rule of Appellate Procedure 52.8(a). In invoking the new procedure, the majority invites the relator to perform a useless act—to fix defects in her filings that, if corrected, would not entitle her to the relief she seeks. By sending the relator on this fool's errand, the majority builds false expectations, adds costs, and creates delays—unfairness and inefficiencies that damage mandamus practice and procedure.
The primacy of the first two reasons makes today's decision especially troubling, but these reasons need little explanation as the breached principles find deep roots in our rule-of-law system. By unpacking the third reason, Texans can see the value of adhering to core principles and why today's betrayal of them hurts both the litigants and the law.
See Glassman , 347 S.W.3d at 781–82 ; Johnson , 610 S.W.3d at 595–96 ; Burnett , 328 S.W.3d at 597–98.
This court should deny the relator's petition based on both the procedural deficiencies and the substantive barriers to obtaining relief.
Relator Somaiah Kholaif seeks a writ of mandamus and a writ of prohibition in this court to prevent the issuance of a writ of possession in the underlying forcible-detainer action. She claims entitlement to this relief on the ground that the presiding judge in the underlying case is impermissibly interfering with this court's appellate jurisdiction in an appeal pending in this court. In that appeal, Kholaif challenges the probate court's denial of her petition for a bill of review under Texas Estates Code section 55.251 ("Bill of Review Appeal").
See Kholaif v. Safi , No. 14-20-00218-CV.
Kholaif's petition for writ of mandamus and prohibition does not comply with two procedural requirements applicable in original proceedings. These deficiencies alone provide a basis for this court to deny (not dismiss or threaten to dismiss) Kholaif's petition. If procedural deficiencies in an original proceeding deprive the court of so much information about the case and the relief sought that we cannot analyze the merits, then under established procedure we simply deny relief based on the procedural deficiencies. But, if despite the procedural deficiencies, we can determine that the relator cannot prove entitlement to relief, we can deny relief, citing both the procedural defects and the substantive reason the relator cannot prevail.
See Tex. R. App. P. 52.3(j) (requiring relators to certify that every factual statement in the petition is supported by competent evidence in the appendix or record); Tex. R. App. P. 52.7(a)(2) (requiring relators to file with the petition a properly authenticated transcript of any relevant testimony from any underlying proceeding or a statement that no testimony was adduced in connection with the matter made the subject of the relator's complaint).
See In re Fed Ex Ground Package Sys., Inc. , No. 14-19-00853-CV, 2019 WL 5581576, at *1 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, orig. proceeding) (mem. op.).
See id.
See In re Grulkey , No. 14-10-00450-CV, 2010 WL 2171408, at *1 (Tex. App.—Houston [14th Dist.] May 28, 2010, orig. proceeding) (mem. op.) ; In re Asafi , No. 14-09-00908-CV, 2009 WL 3644022, at *1–2 (Tex. App.—Houston [14th Dist.] Nov. 5, 2009, orig. proceeding) (mem. op.) ; In re Johnson , Nos. 14-09-00603-CV, 14-09-00614-CV, 2009 WL 2176576, at *1 (Tex. App.—Houston [14th Dist.] Jul. 23, 2009, orig. proceeding) (mem. op.) ; In re Riggins , No. 14-09-00255-CV, 2009 WL 1150170, at *1 (Tex. App.—Houston [14th Dist.] Apr. 30, 2009, orig. proceeding) (mem. op.).
In the final judgment in the de novo appeal of the forcible-detainer action the county civil court at law awarded only possession. It did not determine title. The issuance of a writ of possession in the underlying forcible-detainer action would not interfere with this court's jurisdiction in the Bill of Review Appeal. For these reasons, Kholaif cannot possibly be entitled to the mandamus and prohibition relief she seeks. Even if she presented flawless paperwork to this court, she still would not be entitled to the relief she seeks.
See In re K.Y. , 273 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In these original proceedings, Kholaif, as the relator, bears the burden of demonstrating her entitlement to relief. This burden includes following the procedural rules and providing this court with a record sufficient to make that showing under the applicable legal standard. Kholaif has failed to satisfy this burden. Therefore, this court should deny Kholaif's petition based on both the procedural deficiencies and the substantive barriers to obtaining relief.
See In re Ford Motor Co. , 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding) ; Walker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
See Walker , 827 S.W.2d at 837 (stating that it is relator's burden to provide a record sufficient to establish her entitlement to mandamus relief); In re Le , 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (stating that "[t]hose seeking the extraordinary remedy of mandamus must follow the applicable procedural rules"); In re Nguyen , No. 14-07-00482-CV, 2007 WL 1815869, at *1 (Tex. App.—Houston [14th Dist.] Jun. 22, 2007, orig. proceeding) (concluding that relator had failed to establish her entitlement to the extraordinary relief she sought because she failed to comply with the requirements of the Texas Rules of Appellate Procedure) (mem. op.).
See In re Grulkey , 2010 WL 2171408, at *1 ; In re Asafi , 2009 WL 3644022, at *1–2 ; In re Johnson , 2009 WL 2176576, at *1 ; In re Riggins , 2009 WL 1150170, at *1.
Departing from binding precedent and governing rules, the majority invokes a procedure akin to that in Texas Rule of Appellate Procedure 42.3(c), which does not apply to original proceedings.
Texas Rule of Appellate Procedure 42.3 states in its entirety:
Under the following circumstances, on any party's motion—or on its own initiative after giving ten days’ notice to all parties—the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:
(a) for want of jurisdiction;
(b) for want of prosecution; or
(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.
Tex. R. App. P. 42.3 (emphasis added).
Under the rule's unambiguous language, these procedures do not apply to original proceedings. The majority does not contend otherwise; instead, the majority, without explanation, gives Kholaif notice that her original proceedings will be dismissed for failure to comply with Rules 52.3(j) and 52.7 in ten days, unless Kholaif cures the deficiencies. The only authority the majority cites as support for this action is a "see generally" citation to Rule 42.3(c). In promulgating Rule 42.3, the Supreme Court of Texas limited this notice-to-cure procedure to civil appeals and chose not to include a counterpart for original proceedings. Even so, the majority asks the supreme court to amend the rules to make a Rule 42.3 procedure apply to original proceedings. In the meantime, the majority apparently is amending the rules by judicial decision.
See id.
Ante at 229.
See id.
See ante at 231, n.1.
The majority cites no case to support its departure from this court's precedent, and research has revealed no case from the supreme court or our court supporting this action. Instead, in scads of binding precedents this court has held that if a relator fails to satisfy the procedural requirements in Rule 52.3(j) or Rule 52.7(a)(2), the court should deny the relator's petition. In this line of cases, we have held that a failure to satisfy the procedural requirements applicable to original proceedings, such as those in Rules 52.3(j) and 52.7(a)(2), means that the relator has not shown entitlement to the relief sought, compelling this court to deny the relator's petition. Under Rule 52.8(a) ’s plain text, if this court determines that the relator is not entitled to the relief sought, this court "must deny the petition." Thus, under the unambiguous terms of the Rules of Appellate Procedure and this court's precedents, the Rule 42.3 procedure the majority invokes today does not apply in original proceedings, and this court must deny the petition of a relator who fails to show entitlement to the relief sought.
See, e.g. , In re Moody , No. 14-20-00529-CV, 2020 WL 4520415, at *1 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020, orig. proceeding) (mem. op.) ; In re Jimenez , No. 14-20-00387-CV, 2020 WL 3527550, at *1 (Tex. App.—Houston [14th Dist.] June 30, 2020, orig. proceeding) (mem. op.) ; In re Wigley , No. 14-19-00749-CV, 2019 WL 5078650, at *2–3 (Tex. App.—Houston [14th Dist.] Oct. 10, 2019, orig. proceeding) (mem. op.) ; In re Sorrow , No. 14-19-00690-CV, 2019 WL 4419645, at *1 (Tex. App.—Houston [14th Dist.] Sept. 17, 2019, orig. proceeding) (mem. op.) ; In re Starks , No. 14-17-00970-CV, 2018 WL 505206, at *1 (Tex. App.—Houston [14th Dist.] Jan. 23, 2018, orig. proceeding) (mem. op.) ; In re Fields , No. 14-17-00640-CV, 2017 WL 3495396, at *1–2 (Tex. App.—Houston [14th Dist.] Aug. 15, 2017, orig. proceeding) (mem. op.) ; In re Foster , 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (mem. op.) ; In re Marrs , No. 14-11-00993-CV, 2011 WL 5928582, at *1–2 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, orig. proceeding) (mem. op.) ; In re Robertson , No. 14-09-00478-CV, 2009 WL 1678106, at *1–2 (Tex. App.—Houston [14th Dist.] Jun. 11, 2009, orig. proceeding) (mem. op.) ; In re Riggins , 2009 WL 1150170, at *1 ; In re Clewis , No. 14-09-00272-CV, 2009 WL 909569, at *1 (Tex. App.—Houston [14th Dist.] Apr. 7, 2009 [mand. denied], orig. proceeding) (mem. op.); In re McCloskey , No. 14-08-00040-CV, 2008 WL 256977, at *1 (Tex. App.—Houston [14th Dist.] Jan. 31, 2008, orig. proceeding) (mem. op.) ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Doxey , No. 14-07-00852-CV, 2007 WL 4841275, at *1 (Tex. App.—Houston [14th Dist.] Nov. 1, 2007, orig. proceeding) (mem. op.) ; In re Intracare Hosp. , No. 14-07-00127-CV, 2007 WL 704950, at *1 (Tex. App.—Houston [14th Dist.] Mar. 8, 2007, orig. proceeding) (mem. op.) ; In re Starfleet Marine Transp. , No. 14-03-00575-CV, 2003 WL 21232095, at *1 (Tex. App.—Houston [14th Dist.] May 29, 2003, orig. proceeding) (mem. op.).
See, e.g. , In re Nguyen , 2007 WL 1815869, at *1 (concluding that relator had failed to establish her entitlement to the extraordinary relief she sought because she failed to comply with the requirements of the Texas Rules of Appellate Procedure).
Tex. R. App. P. 52.8(a) (stating that "[i]f the court determines from the petition and any response and reply that the relator is not entitled to the relief sought, the court must deny the petition"); In re Nguyen , 2007 WL 1815869, at *1.
This court must give effect to the plain meaning of the language used in the Texas Rules of Appellate Procedure. See Estrada v. Dillon , 44 S.W.3d 558, 562 (Tex. 2001) ; Glassman , 347 S.W.3d at 781–82.
See Tex. R. App. P. 42.3, 52.8(a) ; In re Nguyen , 2007 WL 1815869, at *1.
The majority has not cited and research has not revealed any case in which this court applied Rule 42.3(c) to an original proceeding. The majority claims that, without applying Rule 42.3(c) to today's original proceedings, the court simply has decided to give Kholaif ten days’ notice that her petitions will be dismissed for failure to comply with Rules 52.3(j) and 52.7 unless she cures those deficiencies. The majority has not cited and research has not revealed any case in which this court has given a relator this notice. Not even in the two recent cases the majority cites did the court follow this procedure.
See Tex. R. App. P. 42.3, 52.8(a) ; In re Nguyen , 2007 WL 1815869, at *1.
Ante at 229.
See In re Norvell , No. 14-20-00648-CV, 610 S.W.3d 598, 599–600 (Tex. App.—Houston [14th Dist.] Oct. 6, 2020, orig. proceeding) ; In re Hughes , 607 S.W.3d 136, 137–38 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding).
By coopting the Rule 42.3(c) procedure and giving notice of an intention to dismiss Kholaif's petition instead of using this court's mandamus precedent to deny Kholaif's petition, the majority shirks its duty to follow this court's well-established procedure as set forth in many binding precedents. In this line of cases, this court has held that a failure to satisfy the procedural requirements applicable to original proceedings, such as those in Rules 52.3(j) and 52.7(a)(2), means that the relator has not shown entitlement to the relief sought, and therefore this court must deny the relator's petition. These holdings do not amount to obiter dicta. Neither the parties nor the majority have cited, nor has research revealed an on-point decision from the Supreme Court of Texas or this court sitting en banc that goes against this court's many holdings on these points. Nor has the majority pointed to a material change in relevant statutes or rules since this court issued these decisions. Contrary to the majority's apparent belief, each of these holdings binds this panel and every panel. By failing to follow them, the majority creates a lack of uniformity in this court's decisions and defies fundamental principles of stare decisis.
See, e.g. , In re Moody , 2020 WL 4520415, at *1 ; In re Jimenez , 2020 WL 3527550, at *1 ; In re Wigley , 2019 WL 5078650, at *2–3 ; In re Sorrow , 2019 WL 4419645, at *1 ; In re Starks , 2018 WL 505206, at *1 ; In re Fields , 2017 WL 3495396, at *1–2 ; In re Foster , 503 S.W.3d at 607 ; In re Marrs , 2011 WL 5928582, at *1–2 ; In re Robertson , 2009 WL 1678106, at *1–2 ; In re Riggins , 2009 WL 1150170, at *1 ; In re Clewis , 2009 WL 909569, at *1 ; In re McCloskey , 2008 WL 256977, at *1 ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Doxey , 2007 WL 4841275, at *1 ; In re Intracare Hosp ., 2007 WL 704950, at *1 ; In re Starfleet Marine Transp ., 2003 WL 21232095, at *1.
See, e.g. , In re Nguyen , 2007 WL 1815869, at *1 (concluding that relator had failed to establish her entitlement to the extraordinary relief she sought because she failed to comply with the requirements of the Texas Rules of Appellate Procedure).
See Glassman , 347 S.W.3d at 781 (noting that under principles of horizontal stare decisis, a panel of this court is bound by a prior holding of another panel of this court absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel holding or an intervening and material change in the statutory law).
See id.
The majority gives disparate treatment to parties who stand in the same position.
The majority states that giving Kholaif notice and an opportunity to cure "is difficult to characterize as a bad thing." The majority overlooks the negative consequences that flow from giving disparate treatment to parties who stand in the same position. After years of denials—and without any authority or support—the majority singles today's cases out for different treatment.
Ante at 230.
See, e.g. , In re Moody , 2020 WL 4520415, at *1 ; In re Jimenez , 2020 WL 3527550, at *1 ; In re Wigley , 2019 WL 5078650, at *2–3 ; In re Sorrow , 2019 WL 4419645, at *1 ; In re Starks , 2018 WL 505206, at *1 ; In re Fields , 2017 WL 3495396, at *1–2 ; In re Foster , 503 S.W.3d at 607 ; In re Marrs , 2011 WL 5928582, at *1–2 ; In re Robertson , 2009 WL 1678106, at *1–2 ; In re Riggins , 2009 WL 1150170, at *1 ; In re Clewis , 2009 WL 909569, at *1 ; In re McCloskey , 2008 WL 256977, at *1 ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Doxey , 2007 WL 4841275, at *1 ; In re Intracare Hosp ., 2007 WL 704950, at *1 ; In re Starfleet Marine Transp ., 2003 WL 21232095, at *1.
Five months ago, a unanimous panel of this court denied Richard Jimenez's mandamus petition because he failed to comply with Rule 52.3(j) and Rule 52.7(a). Three months ago, a divided panel of this court decided that Darren T. Hughes's mandamus petition should be dismissed because he failed to comply with Rule 52.3(j) and Rule 52.7(a). The court did not give Jimenez or Hughes ten days’ notice and a chance to cure defects before disposing of their mandamus petitions. Why does Kholaif get different treatment? The majority does not say.
See In re Jimenez , No. 14-20-00387-CV, 2020 WL 3527550, at *1 (Tex. App.—Houston [14th Dist.] Jun. 30, 2020, orig. proceeding) (mem. op.).
See In re Hughes , 607 S.W.3d at 137–38.
See In re Hughes , 607 S.W.3d at 137–38 ; In re Jimenez , 2020 WL 3527550, at *1.
The majority appears to endorse a rule that gives the panel discretion to give some relators who have failed to comply with the procedural rules a second chance while denying that opportunity to other relators, yet the majority does not identify any legal standard for determining which ones get the special treatment. Apparently, under the majority's new rule, the court may give notice and an opportunity to cure on an "ad hoc basis" without revealing the court's decision-making criteria.
See ante at 230.
Under settled precedent this court routinely denies relief to relators who, like Kholaif, fail to comply with procedural rules, such as Rules 52.3(j) and 52.7(a)(2). If today another litigant were to file a petition seeking the same relief Kholaif seeks, the governing rules (binding precedent) would require the panel hearing the case to deny relief on the merits. If that panel were keeping faith with horizontal stare decisis, that panel would deny (not dismiss) the petition without providing notice and an opportunity to cure. The litigants and lawyers in both cases (and the public) might wonder why Kholaif received special treatment and why the other litigant did not. Knowing that Kholaif's panel did not follow this court's binding precedent, the parties and the public might wonder what criteria Kholaif's panel used to reach its decision.
See, e.g. , In re Moody , 2020 WL 4520415, at *1 ; In re Jimenez , 2020 WL 3527550, at *1 ; In re Wigley , 2019 WL 5078650, at *2–3 ; In re Sorrow , 2019 WL 4419645, at *1 ; In re Starks , 2018 WL 505206, at *1 ; In re Fields , 2017 WL 3495396, at *1–2 ; In re Foster , 503 S.W.3d at 607 ; In re Marrs , 2011 WL 5928582, at *1–2 ; In re Robertson , 2009 WL 1678106, at *1–2 ; In re Riggins , 2009 WL 1150170, at *1 ; In re Clewis , 2009 WL 909569, at *1 ; In re McCloskey , 2008 WL 256977, at *1 ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Doxey , 2007 WL 4841275, at *1 ; In re Intracare Hosp ., 2007 WL 704950, at *1 ; In re Starfleet Marine Transp ., 2003 WL 21232095, at *1.
See Tex. R. App. P. 52.8(a) ; Glassman , 347 S.W.3d at 781 ; In re Grulkey , 2010 WL 2171408, at *1 ; In re Asafi , 2009 WL 3644022, at *1–2 ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Johnson , 2009 WL 2176576, at *1 ; In re Riggins , 2009 WL 1150170, at *1.
See Tex. R. App. P. 52.8(a) ; Glassman , 347 S.W.3d at 781 ; In re Grulkey , 2010 WL 2171408, at *1 ; In re Asafi , 2009 WL 3644022, at *1–2 ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Johnson , 2009 WL 2176576, at *1 ; In re Riggins , 2009 WL 1150170, at *1.
Horizontal stare decisis keeps the court's decision-making stable and consistent by ensuring that panels follow the same rules so that litigants in like circumstances receive like treatment. When, as today, a panel abandons stare decisis to promote its own rule — one that gives a litigant special treatment — the panel muddles the law and makes the delivery of justice seem random and arbitrary. Most would consider that a "bad thing". Following precedent, by contrast, gives the people an important measure of transparency and the confidence that the court decided the case based on the law and not some unknown and untested criteria. In this way adherence to horizontal stare decisis serves as a check on judicial arbitrariness. When a panel casts off horizontal stare decisis and goes its own way, it steps on the rule of law's protection against random judicial decision-making.
Because the majority fails to follow this court's binding precedent, today's decision will not bind future panels of this court. Though it creates an unfair and unfortunate lack of uniformity in this court's treatment of procedural defects in original proceedings, it does not supplant existing procedure or supersede existing precedent. For the same reason, the In re Norvell and In re Hughes cases, in which this court dismissed rather than denied a mandamus petition based on procedural defects, without discussing this court's prior precedents, do not bind the court in today's cases or in future cases.
See Glassman , 347 S.W.3d at 781 ; Johnson , 610 S.W.3d at 595–96 ; Burnett , 328 S.W.3d at 597–98.
See Glassman , 347 S.W.3d at 781 ; In re Norvell , 610 S.W.3d at 598–600 ; Johnson , 610 S.W.3d at 595–96 ; In re Hughes , 607 S.W.3d at 137–38 ; Burnett , 328 S.W.3d at 597–98.
There is no issue as to whether denying the relator's petition based on procedural defects would violate constitutional due process or due course of law.
The majority suggests that failing to give Kholaif notice and an opportunity to cure the defects in her filings would violate the procedural due process protections of the United States Constitution and the procedural due course of law protections of the Texas Constitution. No party has asserted these points. Even if a party had raised these issues, denying Kholaif's petition without giving her notice and an opportunity to cure in no way, shape, or form would deprive Kholaif of notice and an opportunity to be heard at a meaningful time and in a meaningful way. Thus, in the mountain of cases in which this court denied original-proceeding petitions without giving the relator notice and an opportunity to cure, the court did not violate the constitutional protections of procedural due process and procedural due course of law. Despite the majority's suggestions, today's cases do not involve any issues of procedural due process or procedural due course of law. Instead, today's cases raise the question of what action the court should take under Texas law on an original-proceeding petition that fails to comply with Rules 52.3(j) and 52.7(a)(2) — a question this court has answered many times.
See ante at 232.
See Reynoso v. Dibs US, Inc. , 541 S.W.3d 331, 339–42 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
See, e.g., In re Moody , 2020 WL 4520415, at *1 ; In re Jimenez , 2020 WL 3527550, at *1 ; In re Wigley , 2019 WL 5078650, at *2–3 ; In re Sorrow , 2019 WL 4419645, at *1 ; In re Starks , 2018 WL 505206, at *1 ; In re Fields , 2017 WL 3495396, at *1–2 ; In re Foster , 503 S.W.3d at 607 ; In re Marrs , 2011 WL 5928582, at *1–2 ; In re Robertson , 2009 WL 1678106, at *1–2 ; In re Riggins , 2009 WL 1150170, at *1 ; In re Clewis , 2009 WL 909569, at *1 ; In re McCloskey , 2008 WL 256977, at *1 ; In re Nguyen , 2007 WL 1815869, at *1 ; In re Doxey , 2007 WL 4841275, at *1 ; In re Intracare Hosp ., 2007 WL 704950, at *1 ; In re Starfleet Marine Transp ., 2003 WL 21232095, at *1.
Dismissals of petitions in original proceedings for lack of jurisdiction are not like Rule 42.3 dismissals.
The majority says that this court's prior dismissals of petitions in original proceedings for lack of subject-matter jurisdiction are similar to Rule 42.3 dismissals. The majority does not cite any cases in which this court dismissed an original-proceeding petition for lack of subject-matter jurisdiction after giving notice and an opportunity to cure, and simply dismissing for lack of jurisdiction is not analogous to the Rule 42.3 procedure.
See In re Targa Channelview, LLC , No. 14-20-00590-CV, 2020 WL 5362411, at *1 (Tex. App.—Houston [14th Dist.] Sept. 8, 2020, orig. proceeding) (dismissing original proceeding for lack of subject-matter without citing Rule 42.3(a), without granting a motion to dismiss, and without giving ten days’ notice) (mem. op.).
The majority identifies no "nondiscretionary rule" to support today's decision.
The majority claims to enforce a "nondiscretionary rule," but the majority does not identify the rule, cite the rule, or explain the rule the majority purports to apply. No nondiscretionary procedural rule requires the court to give Kholaif notice and an opportunity to cure in today's cases, nor does any rule require this court to dismiss a relator's petition that contains procedural defects, rather than deny the petition. The majority has not cited any cases in which a court has held that a failure to satisfy the procedural requirements in Rules 52.3(j) or 52.7(a)(2) imposes on the appellate court a nondiscretionary duty to dismiss rather than deny the petition in the original proceeding.
See ante at 213.
The court should not require a vain and useless act.
The law does not require a vain and useless act. But today this court does. By stating that the court will dismiss Kholaif's petition without addressing its merits unless Kholaif cures the procedural defects, the majority invites Kholaif to try again. For the sake of all concerned, the court should deny the petition now. In putting Kholaif through the paces, the court is not giving her a chance to succeed but a chance to fail again.
See Mackey v. Lucey Prods. Corp. , 150 Tex. 188, 239 S.W.2d 607, 608 (1951) (stating that "[t]he law does not require the doing of a vain and useless thing"); Candies Towing Co., Inc. v. M/V B & C Eserman , 673 F.2d 91, 95 & n.3 (5th Cir. 1982) (stating and adhering to the corresponding Latin maxim "lex neminem cogit ad vana seu inutilia peragenda ," which means "the law compels no one to do vain or useless things"); Sir Anthony Main's Case , 3 Co. Rep. 20b, 21a, 77 Eng. Rep. 80, 81 (K.B. 1596) (concluding that "the law will not enforce any one to do a thing which will be vain and fruitless").
Centuries of the futility doctrine teach that the law does not require a vain and useless act. It is useless to require Kholaif to fix procedural defects that will not alter the outcome. In putting Kholaif through this process, the court builds false expectations and creates inefficiencies that add costs and waste time and resources.
See Mackey , 239 S.W.2d at 608 ; Candies Towing Co., Inc. , 673 F.2d at 95 & n.3 ; Sir Anthony Main's Case , 3 Co. Rep. 20b, 21a, 77 Eng. Rep. at 81.
It is one thing to require a relator to comply with procedural rules when but for the noncompliance the relator would stand a chance of success on the merits; it is quite another to require compliance in cases like this, in which the relator will lose in any event. By threatening dismissal of today's cases based on procedural defects and inviting Kholaif to try again, the court is doing precisely what the law shuns — requiring a vain and useless act.
See Mackey , 239 S.W.2d at 608 ; Candies Towing Co., Inc. , 673 F.2d at 95 & n.3 ; Sir Anthony Main's Case , 3 Co. Rep. 20b, 21a, 77 Eng. Rep. at 81.
Conclusion
To honor longstanding precedent, to keep faith with the public and the other members of this court through adherence to horizontal stare decisis, to serve the interests of the litigants, and to promote the efficient administration of justice, this court should deny Kholaif's petition on the merits. Because the court does not, I respectfully dissent.
( Spain, J., majority order).