Petition for Writ of Mandamus Denied , and Memorandum Majority and Dissenting O pinion s filed June 4, 2024.

In The 

## Fourteenth Court of Appeals

NO. 14

- 24

- 00182

- CR

IN RE MARK HONSAKER , Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS 405th District Court Gal veston Count y, Texas Trial Court Ca use No. 23

- CR

- 3047



### MEMORANDUM D ISSENTING OPINION

Yet again this court denies mandamus relief to an incarcerated person in part on the erroneous notion that in criminal cases, motions

— other than motions for
new trial

— must in effect b e presented to the trial court, no t merely filed. A majority of the In re Pete court recognized that the appellate opinions setting forth special rules for incarcerated persons in criminal cases (the “extra rules”) have an underlying basis in c ivil procedu re and motion

- for

- new
- trial criminal procedure,2 not procedure authorized by the legislature in the Code of Criminal Procedure. In
re Pete , 589 S.W.3d 320, 324 (Tex. App.

— Houston [14th Dist.] 2019) (orig. proceeding) (Spain & Poissant, JJ., conc urring)

. As i n Pete , there is a simple, merito rious basis for the court to deny the petitions based on the Texas Rule s of Appellate Procedure : (1) 52.3(k)(1)(A)

— lack of an appendix containing a certified or sworn copy of any order complained of, or any oth e r document s how in g the matter complained of;
(2) 5 2.7(a)(1)

— lack of a re c ord containing 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 (this includes (1) abo ve (the appendi x) , b ut potentially requires more documents tha n (1)) ; and
(3 ) 52.7(a)(2)

— lack of a record containing a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement t hat n o testimony
was addu ced in connection with the matter complained

. Rel ator simply has not provided this court with the motion s that are allegedly pending before the trial court

. 1 Id. at 322 . Relator makes no express
claim that he i s unabl e to file the re qu ired appendix and/or record

. See In re

1 Nei t her Texas Rule of Appellate Pr ocedure 5 2.3(k)(1)(A) nor 52.7(a)(1) re quires th at a motion included in either the appendix or record must be a “file

- stamped copy of the motion.” Instead, both rules require such a motion to be a “certified or sworn copy.” T e x. R. App. P. 52.3(k)(1)(A) , 5 2.7(a)(1) . It is the c ourt ’ s “extra rules” that require a “file

- stamped copy of the motion.”3 Flanigan , 578 S. W.3d 634, 638 (Tex. App.

— Houston [14th Dist.] 2019) (orig.

proc eeding) (Spain, J., concurring).
Rather than follow the Texas Rules of Appellate Procedure, the court
continues to cite c ases that se t o ut “extra rules” that a n incarcerated person cannot
satis fy without the cooperation of public serva nts in the trial court and clerk ’ s office . And if for any reason th ose public servants don ’ t cooperate, then i t appears the answer to the inc a rcerated per son i s, “Too bad.” 2
I do not understand why an appellate court believes it is appr opriate to adopt
“extra rules” tha t effectively bar an incarcerated person from access to mandamus and other extraordinary rel ief. The justices on this court man a ge to hear a nd de cide matters assigned to them, including motions from incarcerated persons; I assume trial judges are equally able to perform the duties of their judicial office impartially and diligently. See Tex. Code Jud. Conduct, Canon 3(B)(1)

. I kno w that people wh o are incarcerated are capable of being vexatious litigants and of filing friv olous motions. It is reasonable to have procedures to curb such abuses of the judicial system, and the legislature has enacted such procedures.

2 If an i ncarcera ted person mails a motion or other request for relief that is properly addressed and contains sufficient postage, t h en should it not be assumed th e request was received ? And if, for whatever rea son, the sender does not receive a response from the t rial

- cou rt judge or clerk, then how does the sender conclusively prove that the request for r elief was received? Even if th e sender pays for a “green ca rd ” (Domest ic Return Rec eipt PS Form 3811), assumi ng a n incarcerated person has access to the United Sta tes Post al Serv ice, that “ green card ” does not conclusively prove what was sent. The “extra rules” require a “file

- stamped copy,” for which the incarcer at ed person must rely on the cooperation of public servan t s in the trial court and clerk ’ s office . And f in ally, how does the sender take the additional step required by the “extra rules” and in effect present the request for relief to the trial judge? Rela to r claims to be in the Galveston County jail , and I rather doubt there are “ hall passes ” available at t he jail to all ow relator to go present his m o tions to the trial judge.4 But so long a s the legislature mai nt ains control over procedure in criminal cases, the appellate courts have no general power to assist the legisl ature by adopting
such “extra rules.” 3
Rather than rely on “extra rules” the judiciary has no authority to adopt, I
would follow due process and d ue course of law , give rela tor notice that his petition does not comply with the Texas Rules of Appellate Pro c edure as previously explained , and give relator 30

- days ’ notice of involuntary dismissal for failure to comply with Texas Rule o f Appellate P roc ed ure 52.7(a) requiring (1) a certified or sworn copy of eve ry document that i s material to the relator ’ s claim f or relief and that was filed in any underlying proceeding and (2) a properly authenticated transcript of any relevant testimony f rom any und erl yi ng proceeding, including any exhibits offered in evidence, or a statement th at no testimony was
adduced in con n ection with the matter complained. 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 (Te x. Ap p.

— Houston [14th Dist.] 2020) (orig. proceeding) ; see also Tex. R. App. P. 52.3(k)(1 ) (necessary contents of petition) Tex. Civ. Prac. & Cr i m. Code Ann. § 132.001 (authorizing unsworn declarations).

3 Furthermore, the “extra rules” the intermediate appellate courts have adopted a re not
narr owly tailored to screen out vexatious l itigants or frivolous requests for relief.5 I dissent from the court’s failure to pr ovide not ice and an op po rtunity to

cure. And while I recognize that the “ extra rules ” are this court ’ s preceden t, I
would vote to overrule th a t clearly erroneous precedent i n an en banc vote. Finally, I express no opinion on the merits of the petition fo r a writ of mandamus.

/s / Charles A. Spain Justice

Panel c onsists of Justices Wise, Hassan, and Spain (Spain, J., dissenting)

. Do Not Publish

— Tex. R. App. P. 47.2(b).