MAJORTIY OPINION Does a court of appeals have the power to reach the merits of an original proceeding when there is no evidence properly before the court in an appendix or record to support the petition? See Tex. R. App. P. 52. Assuming the court of appeals has subject-matter jurisdiction based on the petition, the answer is yes, but to do so would nonetheless be error.[1] Accordingly, the court must decline to reach the merits and, instead, dismisses the petitions for want of prosecution without prejudice to refiling. On June 17, 2020, relator Darren T. Hughes filed petitions for writs of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. At the time relator filed the petitions, he was incarcerated in the Harris County jail. In the petitions, relator asks this court to compel the Honorable Randy Roll, presiding judge of the 179th District Court of Harris County, to grant: (1) relator’s motion to dismiss his attorney and appoint a public defender; (2) motion to reduce bail; (3) motion to appoint a private investigator; (4) motion for a hearing on all motions; and (5) motion for personal recognizance bond or release due to delay. To be entitled to mandamus relief on the merits, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks and (2) a clear right to the relief sought. In re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). When the conduct of a court is involved, a relator must demonstrate that what the relator seeks to compel involves a ministerial act, rather than a discretionary act. Id. at 495. A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). Relator’s petitions, however, are deficient on procedural grounds for three reasons. First, relator has not certified that “he or she has reviewed the petition[s] and concluded that every factual statement in the petition[s] is supported by competent evidence included in the appendix or record.” See Tex. R. App. P. 52.3(j). Second, relator has not provided (1) “a certified or sworn copy of any order complained of, or any other document showing the matter complained of,” or (2) filed “a certified or sworn copy of every document that is material to the relator’s claim[s] for relief and that was filed in any underlying proceeding,” and third, relator has not provided “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[s] complained.” See Tex. R. App. P. 52.3(k)(1) (appendix), 52.7(a) (record).[2] Simplyput, there is no evidence properly before this court and not even a certification that the petitions are supported by competent evidence. The argument to cut through the “red tape” and reach the merits is extremely tempting. But this is a court, and procedural due process is real. Ignoring procedure and reaching the merits when the court has no evidence properly before it is a test of this court’s self-restraint. When cases are not properly before the court of appeals, the answer to what the court should do is clear, even if it is frustrating. Accordingly, the court dismisses relator’s petitions for writs of mandamus without prejudice to refiling petitions curing the above-identified deficiencies.[3] /s/ Charles A. Spain Justice Panel consists of Justices Wise, Bourliot, and Spain (Wise, J., concurring). Publish—Tex. R. App. P. 47.2, 52.8(d).
