Opinion
14-23-00702-CV
02-15-2024
IN RE M.P., Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS County Court at Law No. 3 Galveston County, Texas Trial Court Cause No. 23-FD-1384
Panel consists of Justices Jewell, Spain, and Wilson
MEMORANDUM MAJORITY OPINION
PER CURIAM
On September 22, 2023, relator M.P. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Emily Fisher, associate judge of the County Court at Law No. 3 of Galveston County, to vacate her August 29, 2023 order dismissing the underlying proceeding.
Generally, to be entitled to mandamus relief, relator must establish that (1) the trial court abused its discretion; and (2) relator has no adequate remedy by appeal. In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 681 (Tex. 2022) (orig. proceeding). The trial court dismissed the case in its entirety. Therefore, there is a final judgment and relator has an adequate remedy by appeal.
Relator has not established that she is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.
MEMORANDUM DISSENTING OPINION
Charles A. Spain, Justice
Persisting in my view that our duty as judges is to reach a decision on the merits based on a proper record and that due process and due course of law require that this court give notice when the original-proceeding record does not comply with the Texas Rules of Appellate Procedure, I would give relator ten-days notice of involuntary dismissal for failure to comply with Texas Rule of Appellate Procedure 52.7(a)(1) requiring 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); see In re Kholaif, 624 S.W.3d 228, 231 (order), mand. dism'd, 615 S.W.3d 369 (Tex. App.-Houston [14th Dist.] 2020) (orig. proceeding); see also Tex. R. App. P. 52.3(k)(1) (necessary contents of petition); Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (authorizing unsworn declarations).
I dissent from the court's failure to provide notice and an opportunity to cure. I express no opinion on the merits of the petition for a writ of mandamus.