Memorandum Dissenting Opinion to Request for Respo nse filed October 14 ,

2021.

In The



## Fourteenth Court of Appeals

NO. 14

- 21

- 005 4 5

- C V
IN RE MARATHON OIL EF; MARATHON OIL EF II, LLC; AND

MARATHON OIL COMPANY , Relator s

ORIGINAL PROCEEDING WRIT OF MANDAMUS 234th District Court Harris County , Texas Trial C ourt Cause No
. 2019

- 56688

MEMORANDUM DISSENTING OPINION
Because the court implicitly addresses the merits of the petition despite the absence of a prope r rec ord , I dissent to proceeding with this matter w i thout first giving relators notice and an opportunity to cure the deficiency

. Relato r s ’ 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 s worn copy of every do c ument that is materia l to the relators ’ claim for relief and that wa s filed in the underlying proceeding

— as the verification is neither an affidavit nor2

substantiall y compl ies with an unsworn declaration

. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(c) ( requiring the declara tion reflect it be “as true under penalty of pe rjury.” ). Our system requires that someone with knowledge state under penalty of perjury that the record brought to this court is true ; the court

ca nnot put itsel f in th e position of acce p ting records in some cases that meet this standard while turning a b lind 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 impose s “extra rule s ” that block access to justice

. See , e.g. , In r e Gomez , 602 S.W.3d 71 , 74

– 75 (Tex. App.

— Houston [14th Dist.] 2020, no pet .) (orig. p roceeding) (Spain, J., concurring); In re Pete , 589 S.W.3d 320, 322

– 24 (Tex. App.

— Houston [14th Dist.] 2019, no pet.) (orig

. proceeding) (Spai n, J ., concurring); In re Flanigan , 578 S.W.3d 634, 637

– 38 (Tex. App.

— Houston [14th Dist.] 2019, no pet .) (orig.
p roceeding) (Spain, J., concurring) . Yet the court here does not enforce the actual rules regarding a proper record in an or i gi nal proceeding.
I would follow the plain meaning o f Civil Practi c e and Remedies Co d e section 132.001(c) and Texas Rule of Appellate Proce dure 52

. 7(a)

. T ex. R. App. P. 5 2.7 (a) ( “ Relator must file with the petition: (1) a certified or sworn copy of every d ocument that is m ate rial to t he relator's claim for relief and that was filed in any underlying proceeding; and (2) a properly authenticat ed transcript of any relevant testimony f

rom any underlying proceeding, including any exhibits offered in evidence, o r a statement that no testimony was adduced in connection with the

m atter complained. ” ) (emphasis added) ; see Tex. Civ. Prac. & Rem. Code Ann. § 132.001(c)

. Because the Code Construction Act applies to the Texas Rules of3

Appellate Procedure, the word “ m ust ” creates or recognizes a condition precedent. Tex

. Gov ’ t Code Ann. § § 3 11. 00 2 (4) (appl ying Act to rules), . 016 (3) ( def ining

“ must ” )

. O ur duty as judges is to reach a decision o n the merits based on a proper record . D ue process and due course of law require that this court give notice when the original

- pr o c eeding r ecord does n ot comply with the Texas Rules of Appellate Pro cedure

. I would give relator s 10

- days notice of involuntary dismissal for failure to comply with Texas Rule of Appellate Proced ure 52. 7 ( a )

. S ee In re Kholaif , 624 S.W.3d 228, 231 ( order ) , m and. dism’d , 615 S.W .3d 369 (Tex. App.

— Houston [14th Dist.] 2020) ( orig. proceedi ng)

. Parties bef or e the court should be treated impartially. Regardless of the court ’ s reluct ance in this matter, I am confi dent that relator s can swiftly cure the mandamus r e cord so that th is ori ginal proceeding can be decided on the merits

.

/s/ C harles A. S pain Justice

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

.