Opinion
No. 07-05-0276-CV
September 26, 2005.
Panel D: Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
ON MOTION FOR REHEARING
Relator Randy Mack Lackey has moved for rehearing of our order denying his petition for issuance of a writ of mandamus. We remain convinced of the correctness of our order, but write to address one of the contentions in the motion for rehearing.
Our denial of relator's petition was based in part on the absence of documentation of an order of the trial court to which the petition made reference, and the absence of a certified or sworn copy of the motion relator asserted he filed with the trial court. On rehearing, relator argues that the trial court record in the underlying proceeding to which his mandamus petition relates contains the documents. He also contends that review of that record will show his numerous requests to the trial court for a ruling on his motion, and faults this court for failing to require the trial court to forward its record from that underlying proceeding.
Relator's argument fails to recognize the difference between an original proceeding in an appellate court, governed by Rule 52 of the Rules of Appellate Procedure, and an appeal. Review by appeal typically involves submission of the appellate record, including the trial court clerk's record, to the appellate court. Tex.R.App.P. 34. The relator in an original proceeding, by contrast, must submit with the petition seeking the extraordinary relief an appendix containing, among other items, a certified or sworn copy of any order complained of, or any other document showing the matter complained of. Tex.R.App.P. 52.1, 52.3(j)(1)(A). The petition also must be accompanied by a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding. Tex.R.App.P. 52.7(a)(1). It is the burden of a relator seeking issuance of a writ of mandamus, not that of the respondent or the court, to provide a record sufficient to establish the relator's right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). Adherence to the rules governing original proceedings requires that relator's motion for rehearing of our order denying his petition be, and it is, overruled.