Judge Al Bennett is Keepin’ it H-Town Real with a Burger at Barry n Sewart

It took Judge Bennett 10 months to make a decision to remand this case. He’s very selective on how busy his diary is depending on which parties are before him in his courtroom.

Meanwhile over at the 14th COA, there’s growing dissents over the Texas Rules of Appellate Procedure…

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 relators ten-days’ notice of involuntary dismissal for failure to comply with Texas Rules of Appellate Procedure 52.3 and 52.7.

See Tex. R. App. Tex.R.App.P. 52.3(k)(1) (necessary contents of  petition);

Tex.R.App.P. 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. Civ. Prac. & Rem. Code Ann. § 132.001 (authorizing unsworn declarations);

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).

This court has not been consistent with its handling of original proceedings in which the relators did not comply with Rule 52.

Compare In re Hawkins, No. 14-22-00474-CR, 2022 WL 3973867, at *1 (Tex. App.-Houston [14th Dist.] Sept. 1, 2022, no pet.) with In re Hinton, No. 14-22-00543-CR, 2022 WL 16571199, at *1 (Tex. App.-Houston [14th Dist.] Nov. 1, 2022, no pet.) and In re Catt, No. 14-22-00583-CV, 2022 WL 11551248, at *1 (Tex. App.-Houston [14th Dist.] Oct. 20, 2022, no pet.) (Spain, J., concurring).

Kholaif is this court’s controlling precedent, but even if the court ignores that, the potential appearance of subjective decision-making in the absence of an improper original-proceeding record is unfortunate.

1 A positive step forward is the checklist for original proceedings that has been posted on the court’s website to assist parties filing an original proceeding.

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.