Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/2/2015 4:12:38 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00729-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/2/2015 4:12:38 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00729-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON, TEXAS __________________________________________________________________
IN RE : RAYMOND C. CLARK, JR., Relator __________________________________________________________________
ORIGINAL PROCEEDING FROM THE 300 TH JUDICIAL DISTRICT COURT BRAZORIA COUNTY, TEXAS CAUSE NO. 68,312
__________________________________________________________________
FIRST SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS _________________________________________________________________
WILLIAM J. ROBERTSON State Bar No. 17077500 9800 Northwest Freeway, Suite 314 Houston, Texas 77092 Tele: (713) 263-9911 Fax: (866) 657-5609 Email: Robertsonlawfirm@gmail.com ATTORNEY FOR RELATOR RAYMOND C. CLARK, JR.
IDENTITY OF PARTIES AND COUNSEL Relator:
Raymond C. Clark, Jr.
7314 Valentine Lane
Pearland, Texas 77584
Counsel for Relator :
William J. Robertson
State Bar No: 17077500
9800 Northwest Freeway, Suite 314
Houston, Texas 77092
Tele: (713) 263-9911
Fax: (866) 657-5609
Respondents:
The Honorable K. Randall Hufstetler, Presiding Judge
300 th Judicial District Court
Brazoria County, Texas
111 E. Locust, Room 401A
Angleton, Texas 77515
The Honorable Chad Bradshaw, Associate Judge
300 th Judicial District Court,
Brazoria County, Texas
111 E. Locust, Room 401
Angleton, Texas 77515
Real Party in Interest:
Wendy Morrow Clark
3818 Gladeridge Drive
Houston, Texas 77068
Counsel for Real Party in Interest:
Walter P. Mahoney, Jr.
State Bar No: 24043328
The Mahoney Law Firm
3668 Burke
Pasadena, Texas 77504
Tele: (281) 998-9450
Fax: (281) 998-9430
Amicus Attorney
Michelle A. Stover
State Bar No. 0079*7508
P.O. Box 1087
Angleton, Texas 77516-1087
Tele: 979-849-5563
Fax: 866-973-1717
TABLE OF CONTENTS PAGE IDENTITY OF PARTIES AND COUNSEL ............................................................ 2
TABLE OF CONTENTS ........................................................................................... 4
INDEX OF AUTHORITIES ...................................................................................... 5
ISSUES PRESENTED ............................................................................................... 5
Issue Two ................................................................................................................ 5 Did the failure of the Honorable K. Randall Hufstetler to sign, or take other action he deemed proper, with regard to the February 20, 2015 final order of the Associate Judge in the underlying cause of action constitute an abuse of discretion that denied the Relator the right to appeal the final order of the trial court because such inaction by the presiding judge deprived the Court of Appeals jurisdiction? ........................................................................................... 5 ARGUMENT AND AUTHORITIES ........................................................................ 6
Issue Two ................................................................................................................ 6 The failure of the Honorable K. Randall Hufstetler to sign, or take other action he deemed proper, with regard to the February 20, 2015 final order of the Associate Judge in the underlying cause of action constituted an abuse of discretion that denied the Relator the right to appeal the final order of the trial because such inaction by the presiding judge deprived the Court of Appeals jurisdiction to consider the Relator’s appeal. ...................................................... 6 CONCLUSION AND PRAYER ............................................................................... 8
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3(j) ............10
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i) ..............10
RELATOR’S SUPPLEMENTAL APPENDIX.......................................................11
INDEX OF AUTHORITIES PAGE
Statutes
TEX. FAM. CODE §201.001 (e) ............................................................................... 6
TEX. FAM. CODE §201.013 (b) ............................................................................... 6
TEX. FAM. CODE §201.013 (a) ............................................................................... 7
TEX. GOV. CODE §22.221(b) .................................................................................. 6
Constitutional Provisions
TEX. CONST. §19 ..................................................................................................... 7
TEX. CONST. art I §3 ............................................................................................... 7
U. S. CONST. amend. VII ......................................................................................... 7
U.S. CONST. amend V .............................................................................................. 7
ISSUES PRESENTED
Issue Two
Did the failure of the Honorable K. Randall Hufstetler to sign, or take other
action he deemed proper, with regard to the February 20, 2015 final order of
the Associate Judge in the underlying cause of action constitute an abuse of
discretion that denied the Relator the right to appeal the final order of the
trial court because such inaction by the presiding judge deprived the Court of
Appeals jurisdiction?
ARGUMENT AND AUTHORITIES Issue Two
The failure of the Honorable K. Randall Hufstetler to sign, or take other action
he deemed proper, with regard to the February 20, 2015 final order of the
Associate Judge in the underlying cause of action constituted an abuse of
discretion that denied the Relator the right to appeal the final order of the
trial because such inaction by the presiding judge deprived the Court of
Appeals jurisdiction to consider the Relator’s appeal.
The Texas Family Code provides that after a hearing conducted by an Associate Judge that the Associate Judge shall send the Associate Judge’s signed
and dated report, including any proposed order, and all other papers relating to the
case to the referring court. TEX. FAM. CODE §201.011 (e). In this case, the
parties waived the right to a de novo hearing before the presiding judge, as such,
the proposed order or judgment of the Associate Judge becomes the order or
judgment of the referring court only on the referring court’s signing the proposed
order or judgment. TEX. FAM. CODE §201.013 (b).
The failure of the Associate Judge to comply with the mandatory provision of TEX. FAM. CODE §201.011 (e) and the failure of the Presiding Judge, the
Honorable K. Randall Hufstetler, to sign the final judgment of February 20, 2015
or take whatever action he deemed proper has denied the Relator an adequate
remedy at law because such inaction denies the Relator of the ability to seek relief
in the Court of Appeals because, such inaction by the Associate Judge and the
Presiding Judge deprives the Court of Appeals jurisdiction to consider an appeal by
Relator. TEX. GOV. CODE §22.221(b).
The lack appellate jurisdiction has denied Relator the right to seek mandamus relief for the improper denial of the Relator’s constitutional right to a
jury trial, the failure of the court to correctly apply the law and an electronic
recording system that failed to properly record the testimony of a material witness.
The failure of the Presiding Judge and the Associate Judge of the 300 th Judicial District Court of Brazoria County, Texas to make the final order dated
February 20, 2015 the final appealable order of the Presiding Judge have placed
the Relator in the position of being subject to the full force and effect of the
Associate Judge’s order pursuant to TEX. FAM. CODE §201.013 (a) while at the
same time being denied due process as guaranteed under the TEX. CONST. art I
§3, TEX. CONST. art. I §19 and the U. S. CONST. amend. V and U. S. CONST.
amend. VII because the Relator is (1) denied access to equitable and extraordinary
relief in the Court of Appeals on jurisdictional grounds and (2) the Relator is
denied the right to appeal the February 20, 2015 order.
In this regard, on September 23, 2015, the Clerk of the Court of Appeals notified Relator that his appeal would be dismissed for lack of jurisdiction, citing
statutory and case authority as stated therein, unless Relator supplemented the
clerk’s record with an order that is an appealable order. In other words, an order
signed or adopted by the Presiding Judge of the 300 th Judicial District Court of
Brazoria County, Texas (APP. TAB 7).
Inaction by the Presiding Judge of the 300 th Judicial District Court of Brazoria County, Texas has denied a citizen of the State of Texas his constitutional
right to challenge the trial court’s rulings by either by mandamus, appeal or both.
CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED , Relator prays that this Petition for Writ of Mandamus be in all things granted and that the Court of
Appeals order the Presiding Judge of the 300 th Judicial District Court of Brazoria
County, Texas to perform those acts necessary to enable the Presiding Judge to
sign the order of the Associate Judge dated February 20, 2015 and that Relator
have such other and further relief to which he may show himself justly entitled.
Respectfully submitted, /s/ William J. Robertson _____________________ William J. Robertson State Bar No. 17077500 9800 Northwest Freeway, Suite 314 Houston, Texas 77092 (713) 263-9911 Tele.
(866) 657-5609 Fax Robertsonlawfirm@gmail.com ATTORNEY FOR RELATOR RAYMOND C. CLARK, JR.
CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing “First Supplemental Petition for Writ of Mandamus” was forwarded by facsimile and/or by U.S.
Certified Mail, Return Receipt Requested to all pro se parties and/or counsel of
record on this 2 nd day of October 2015.
The Honorable K. Randall Hufstetler, Presiding Judge
300 th Judicial District Court
Brazoria County, Texas
111 E. Locust, Room 401A
Angleton, Texas 77515
Certified Mail, Return Receipt Requested
7015-0640-0005-2383-8541
The Honorable Chad Bradshaw, Associate Judge
300 th Judicial District Court,
Brazoria County, Texas
111 E. Locust, Room 401
Angleton, Texas 77515
Certified Mail, Return Receipt Requested
7015-0640-0005-2383-9074
Walter P. Mahoney, Jr.
The Mahoney Law Firm
3668 Burke
Pasadena, Texas 77504
Certified Mail, Return Receipt Requested
7015-0640-0005-2383-9081
Michelle A. Stover
Law Office of Michelle A. Stover
P.O. Box 1087
Angleton, Texas 77516-1087
Certified Mail, Return Receipt Requested
7015-0640-0005-2383-9098
/s/ William J. Robertson _______________________ William J. Robertson *10 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3(j)
This certifies that the undersigned has reviewed this Petition and concluded that every factual statement in it is supported by competent evidence included in
the appendix or record as required by Appellate Rule 52.3(j).
/s/ William J. Robertson ____________________________ William J. Robertson CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i) I certify that is document contains 1,597 words, as indicated by the word- count function of the computer program used to prepare it, and excluding the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix, as provided by
Appellate Rule 9.4(i).
/s/ William J. Robertson ____________________________ William J. Robertson *11 NO. 01-15-00729-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON, TEXAS __________________________________________________________________
IN RE : RAYMOND C. CLARK, JR., Relator __________________________________________________________________
ORIGINAL PROCEEDING FROM THE 300 TH JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS CAUSE NO. 68,312
__________________________________________________________________
RELATOR’S SUPPLEMENTAL APPENDIX _________________________________________________________________
TAB NO. DESCRIPTION
7. Letter from Clerk of Court of Appeals dated September 23, 2015. *12 TAB 7
12
COURT OF APPEALS FOR THE FIRST D ISTRICT OF TEXAS AT HOUSTON NOTICE
Appellate case name: Raymond C. Clark v. Wendy Jean Morrow Clark
Appellate case number: 0 1-15-00615-CV
Trial court case number: 68312-D
Trial court: 300th District Court of Brazoria County
The Court has directed me to notify you that the Court may dismiss this appeal for want of jurisdiction.
Appellant, Raymond C. Clark, filed his notice of appeal of an Order in Suit to Modify Parent-Child Relationship signed on February 20, 2015. The clerk's record filed with this Court
includes an order signed on February 20, 2015 by the Honorable Chad D. Bradshaw, Associate
Judge. An associate judge only has the power to render a final judgment or order in a limited
number of circumstances expressly set forth in the Family Code- none of which appear to be
applicable here. See TEX. FAM. CODE ANN. § 201.007(a)(14) (identifying specific types of orders
associates judges may "render and sign"); see also Graham v. Graham, 414 S.W.3d 800, 801
(Tex. App.- Houston [I st Dist.] 2013, no pet.) (noting associate judges do not have power to
render final judgment outside context of limited exceptions listed in Family Code section
20 1.007(a)(14)).
An associate judge's order that falls outside the scope of section 201.007(a)(14) "becomes the order or judgment of the referring court only on the referring court's signing the
proposed order or judgment." TEX. FAM. CODE ANN. § 201.013(b). Here, the record does not
indicate that the February 20, 2015 order has been signed by the referring court or constitutes an
otherwise appealable order. See TEX. FAM. CODE ANN. § 109.002(b) ("An appeal may be taken
by any party to a suit from a final order rendered under this title."); In re M.E.M., No. 05-09-
00022-CV, 2009 WL 294939, at * 1 (Tex. App.- Dallas Feb. 9, 2009, no pet.) (mem. op.)
(dismissing appeal because associate judge's order was not final judgment or otherwise
appealable order.
Unless appellant causes to be filed a supplemental clerk's record containing documents showing that the February 20, 2015 order is an appealable order, or files a response
demonstrating by citation to the law and the appellate record that this Court has jurisdiction of
the appeal, this appeal may be dismissed for want of jurisdiction. See T EX . R. Arr. P. 42.3(a),
43.2(f). Appellant's respo nse, if any. is due in this Court within 14 days of the date of this
notice.
c~~;:,..
Clerk 's Signature:
Christopher A. Prine, Clerk of the Court
Date: September 23, 2015