Opinion
14-21-00554-CR 14-21-00555-CR
11-18-2021
IN RE LISA MARIE SEARCY, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 178th District Court Harris County, Texas Trial Court Cause Nos. 942126 &941349
Panel consists of Justices Jewell, Spain, and Wilson
MEMORANDUM MAJORITY OPINION
Randy Wilson, Justice
On October 6, 2021, relator Lisa Marie Searcy 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 Kelli Johnson, presiding judge of the 178th District Court of Harris County, to "rule on 1 pending pro se motions" and order the turnover of certain records "used for 942126/941349."
In 2003, relator was charged by indictment, and subsequently convicted by a jury, for delivering at least 400 grams of methamphetamine. See Searcy v. State, No. 14-03-00402-CR, 2004 WL 1315448, at *1 (Tex. App.-Houston [14th Dist.] June 15, 2004, no pet.) (not designated for publication). The jury assessed relator's punishment for a term of twenty years' in prison. Id. Relator challenged her conviction on direct appeal, and this court affirmed the judgment of the trial court. Id. at *6. Relator did not file a petition for discretionary review with the Texas Court of Criminal Appeals.
To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). If a party properly files a motion with a trial court, the trial court has a ministerial duty to rule on the motion within a reasonable time after the motion has been submitted to the court for a ruling or after the party requested a ruling. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding) (citing In re Flanigan, 578 S.W.3d 634, 635-36 (Tex. App.- Houston [14th Dist.] 2019, orig. proceeding)). Thereafter, if a trial court fails to rule, mandamus may issue to compel the trial court to act. Ramos, 598 S.W.3d at 473.
As the party seeking relief, it is relator's burden to provide a sufficient record to establish that relator is entitled to mandamus relief. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding). For mandamus relief to be granted, the record must show (1) the motion was filed and brought to the attention of the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the motion within a reasonable time after the 2 motion has been submitted to the court for a ruling or after the party requested a ruling. See id. In a criminal mandamus proceeding, to establish that a motion was filed, a relator 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. Id. at 74 (citing Flanigan, 578 S.W.3d at 636); In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding).
Here, relator neither identifies in her petition a pending motion in the trial court nor attaches a file-stamped copy of a motion or any other proof that a motion in fact was filed and is pending before the trial court. See Gomez, 602 S.W.3d at 73-74. As such, relator has not met her burden of providing this court with a sufficient record to establish her right to mandamus relief. See id.
Relator has not established that she is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus. 3
MEMORANDUM DISSENTING OPINION
Charles A. Spain, Justice
Here we go again with imposing "extra rules" that block access to justice by requiring individuals acting pro se who are in jail or prison to "present" the relevant motion or application to the trial court judge and that a filed-marked copy of the relevant motion or application must be part of the mandamus record. See In re Gomez, 602 S.W.3d 71, 74-75 (Tex. App.-Houston [14th Dist] 2020, no. pet.) (orig proceeding) (Spain, J, concurring); In re Pete, 589 S.W.3d 320, 322-24 1 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (orig. proceeding) (Spain, J., concurring); In re Flanigan, 578 S.W.3d 634, 637-38 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (orig. proceeding) (Spain, J., concurring); In re Marshall, No. 14-20-00318-CR, 2020 WL 3467262 (Tex. App.-Houston [14th Dist.] June 25, 2020, no pet.) (mem. op., not designated for publication) (orig. proceeding) (Spain, J., concurring). In each of the cited cases, there was a valid reason to not grant the requested relief, yet this court nonetheless disposed of the cases on the "extra rules" that are supported only in caselaw, not by reasoned authority.
In these two petitions for a writ of mandamus, relator has not complied with actual rules, Texas Rule of Appellate Procedure 52.3(j) and (k) and 52.7(a). Tex.R.App.P. 52.3(j) ("The person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.") (emphasis added), (k)(1) (necessary contents of appendix); 52.7(a) ("Relator must file with the petition: (1) 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; and (2) a properly authenticated transcript 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.") (emphasis added). Because the Code Construction Act applies to the Texas Rules of Appellate Procedure, the word "must" creates or recognizes a condition precedent. Tex. Gov't Code Ann. §§ 311.002(4) (applying Act to rules), .016(3) (defining "must"). That is a legitimate reason-based on legitimate rules-to not grant relator's requested relief. 2
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 45-days notice of involuntary dismissal for failure to comply with Texas Rule of Appellate Procedure 52.3(j) requiring relator to certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record, 52.3(k) requiring certain documents be included in the appendix, and 52.7(a) requiring (1) 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 and (2) a properly authenticated transcript 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. Tex.R.App.P. 52.3(j), (k)(1); 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. Civ. Prac. &Rem. Code Ann. § 132.001 (authorizing unsworn declarations). 3
I realize the difficulty a pro se, incarcerated relator has in complying with these Rules 52.3(j) and (k) and 52.7(a), but original proceedings have been filed by pro se, incarcerated relators in this court that do comply with those rules. I have no idea how a relator could comply with the "extra rules" if the trial court and trial-court clerk do not furnish filed-marked copies. My view of due process and due course of law is not restricted so narrowly as offering a pro se, incarcerated relator access to justice only if public officials voluntarily assist a relator in a proceeding in which the actions of public officials are being questioned.
I dissent from the court's failure to provide notice and an opportunity to cure in each of these two petitions for a writ of mandamus.