Memorandum Dissenting Opinion to Request for Response filed October 14, 

2021.

In The

Fourteenth Court of Appeals

NO. 14-21-00545-CV

IN RE MARATHON OIL EF; MARATHON OIL EF II, LLC; AND 

MARATHON OIL COMPANY, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

234th District Court

Harris County, Texas

Trial Court Cause No. 2019-56688

MEMORANDUM DISSENTING OPINION

Because the court implicitly addresses the merits of the petition despite the 

absence of a proper record, I dissent to proceeding with this matter without first 

giving relators notice and an opportunity to cure the deficiency. Relators’

verification of the mandamus record does not appear to meet the requirement of 

Tex. R. App. P. 52.7(a)(1)—that relators must file a certified or sworn copy of 

every document that is material to the relators’ claim for relief and that was filed in 

the underlying proceeding—as the verification is neither an affidavit nor 
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substantially complies with an unsworn declaration. See Tex. Civ. Prac. & Rem. 

Code Ann. § 132.001(c) (requiring the declaration reflect it be “as true under 

penalty of perjury.”). Our system requires that someone with knowledge state 

under penalty of perjury that the record brought to this court is true; the court 

cannot put itself in the position of accepting records in some cases that meet this 

standard while turning a blind eye to others that do not.

When relators are pro se, incarcerated individuals, this court goes beyond the 

requirements of Texas Rule of Appellate Procedure 52 and imposes “extra rules”

that block access to justice. See, e.g., 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 (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). Yet the court here does not enforce the actual 

rules regarding a proper record in an original proceeding.

I would follow the plain meaning of Civil Practice and Remedies Code 

section 132.001(c) and Texas Rule of Appellate Procedure 52.7(a). Tex. R. App. P.

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); see Tex. Civ. Prac. & Rem. Code Ann. 

§ 132.001(c). Because the Code Construction Act applies to the Texas Rules of 
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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”).

Our duty as judges is to reach a decision on the merits based on a proper 

record. 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 10-days notice of involuntary dismissal for failure 

to comply with Texas Rule of Appellate Procedure 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). Parties before the court should be treated 

impartially.

Regardless of the court’s reluctance in this matter, I am confident that 

relators can swiftly cure the mandamus record so that this original proceeding can 

be decided on the merits.

/s/ Charles A. Spain

Justice

Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting).