Petition for Writ of Mandamus Denied, and Memorandum Majority and 

Dissenting Opinions 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

Galveston County, Texas

Trial Court Cause No. 23-CR-3047

MEMORANDUM DISSENTING 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 be presented to the trial court, not 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 civil procedure 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., concurring).

As in Pete, there is a simple, meritorious basis for the court to deny the 

petitions based on the Texas Rules 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 other document showing the matter 

complained of;

(2) 52.7(a)(1)—lack of a record 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) above (the 

appendix), but potentially requires more documents than (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 that no testimony 

was adduced in connection with the matter complained.

Relator simply has not provided this court with the motions that are 

allegedly pending before the trial court.

1 Id. at 322. Relator makes no express 

claim that he is unable to file the required appendix and/or record. See In re 

1 Neither Texas Rule of Appellate Procedure 52.3(k)(1)(A) nor 52.7(a)(1) requires that 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.” Tex. R. App. P. 

52.3(k)(1)(A), 52.7(a)(1). It is the court’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. 

proceeding) (Spain, J., concurring).

Rather than follow the Texas Rules of Appellate Procedure, the court 

continues to cite cases that set out “extra rules” that an incarcerated person cannot 

satisfy without the cooperation of public servants in the trial court and clerk’s 

office. And if for any reason those public servants don’t cooperate, then it appears 

the answer to the incarcerated person is, “Too bad.”2

I do not understand why an appellate court believes it is appropriate to adopt 

“extra rules” that effectively bar an incarcerated person from access to mandamus 

and other extraordinary relief. The justices on this court manage to hear and decide 

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 know that people who are incarcerated are capable of being vexatious 

litigants and of filing frivolous 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 incarcerated person mails a motion or other request for relief that is properly 

addressed and contains sufficient postage, then should it not be assumed the request was 

received? And if, for whatever reason, the sender does not receive a response from the trial-court 

judge or clerk, then how does the sender conclusively prove that the request for relief was 

received? Even if the sender pays for a “green card” (Domestic Return Receipt PS Form 3811), 

assuming an incarcerated person has access to the United States Postal Service, that “green card”

does not conclusively prove what was sent. The “extra rules” require a “file-stamped copy,” for 

which the incarcerated person must rely on the cooperation of public servants in the trial court 

and clerk’s office. And finally, 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? Relator claims to be in 

the Galveston County jail, and I rather doubt there are “hall passes” available at the jail to allow 

relator to go present his motions to the trial judge.
4

But so long as the legislature maintains control over procedure in criminal cases, 

the appellate courts have no general power to assist the legislature 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 due course of law, give relator notice that his 

petition does not comply with the Texas Rules of Appellate Procedure as 

previously explained, and give relator 30-days’ notice of involuntary dismissal for 

failure to comply with Texas Rule of Appellate Procedure 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. 52.7(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. R. App. P.

52.3(k)(1) (necessary contents of petition) Tex. Civ. Prac. & Crim. Code Ann. 

§ 132.001 (authorizing unsworn declarations).

3 Furthermore, the “extra rules” the intermediate appellate courts have adopted are not 

narrowly tailored to screen out vexatious litigants or frivolous requests for relief.
5

I dissent from the court’s failure to provide notice and an opportunity to 

cure. And while I recognize that the “extra rules” are this court’s precedent, I 

would vote to overrule that clearly erroneous precedent in an en banc vote. Finally, 

I express no opinion on the merits of the petition for a writ of mandamus.

/s/ Charles A. Spain

Justice

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

Do Not Publish — Tex. R. App. P. 47.2(b).