In Re: Struge Cultural Center, Inc. v. the State of Texas

DENIED and Opinion Filed December 22, 2023




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-23-01297-CV

            IN RE STRUGE CULTURAL CENTER, INC., Relator

           Original Proceeding from the County Court at Law No. 5
                            Dallas County, Texas
                    Trial Court Cause No. CC-23-06879-E

                        MEMORANDUM OPINION
                 Before Justices Pedersen, III, Nowell, and Miskel
                            Opinion by Justice Miskel
      Before the Court is “Appellee Struge Cultural Center, Inc.’s Emergency

Motion to Review Sufficiency of Security and Motion to Stay Order Granting Stay

of Default Judgment Without Security,” filed in a pending restricted appeal in Cause

No. 05-23-01134-CV. We construe this motion as a petition for writ of mandamus.

      In its petition, as we construe it, relator challenges a trial court’s December

18, 2023 “Order Granting Defendants’ Motion to Stay Judgment Pending Appeal”

in a garnishment proceeding (Cause No. CC-23-06879-E) staying a default judgment

in Cause No. CC-23-03905-E. Relator contends that the trial court had no
jurisdiction to issue the December 18, 2023 order in the garnishment proceeding and

otherwise abused its discretion by issuing the order.

      Entitlement to mandamus relief requires a relator to show that the trial court

clearly abused its discretion and that the relator lacks an adequate appellate remedy.

In re Prudential Ins. Co. of Am., 

, 135–36 (Tex. 2004) (orig.

proceeding). Relator bears the burden of providing the Court with a record sufficient

to show it is entitled to relief. Walker v. Packer, 

 (Tex. 1992)

(orig. proceeding); see also TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).

      Relator’s petition does not comply with the Texas Rules of Appellate

Procedure. See, e.g., TEX. R. APP. P. 52.1, 52.2, 52.3(a)–(k), 52.7(a). For instance, a

petition seeking mandamus relief must include a certification stating that the relator

“has reviewed the petition and concluded that every factual statement in the petition

is supported by competent evidence included in the appendix or record.” TEX. R.

APP. P. 52.3(j). Relator’s petition lacks this required certification.

      Additionally, rule 52.3(k)(1)(A) requires a relator to file an appendix with its

petition that contains “a certified or sworn copy of any order complained of, or any

other document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A).

Rule 52.7(a) requires the relator to file with its petition “a certified or sworn copy of

every document that is material to the relator’s claim for relief that was filed in any

underlying proceeding,” and either “a properly authenticated transcript of any

relevant testimony from any underlying proceeding, including any exhibits offered

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in evidence, or a statement that no testimony was adduced in connection with the

matter complained.” TEX. R. APP. P. 52.7(a)(1), (2). None of the documents included

with relator’s petition are certified or sworn copies. Moreover, the petition reflects

that a hearing was held on the motion at issue, but relator did not provide a transcript

of any testimony from that hearing or the alternative statement required by rule

52.7(a)(2).

      Finally, relator failed to support all arguments and statements of fact with

appropriate citations to the appendix or record. See TEX. R. APP. P. 52.3(g), (h). For

instance, relator’s petition references a purported upcoming trial in a forcible-entry-

and-detainer action and argues that it is facing imminent harm. But relator does not

support these factual statements and arguments with citations to support in the

purported record.

      Accordingly, we deny relator’s petition for writ of mandamus. To the extent

relator asks for any emergency relief in its petition, the request is denied without

prejudice. See TEX. R. APP. P. 10.1(a).




                                            /Emily Miskel/
231297f.p05                                 EMILY MISKEL
                                            JUSTICE




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