Petition for Writ of Mandamus Denied and Majority and Concurring Opinions
filed April 14, 2020.




                                        In the

                     Fourteenth Court of Appeals

                                 NO. 14-20-00204-CR
                                 NO. 14-20-00205-CR



               IN RE FRANKLIN HURTADO GOMEZ, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                              240th District Court
                            Fort Bend County, Texas
                     Trial Court Cause Nos. 38751 & 38752

                           CONCURRING OPINION

      Once 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, not procedure
authorized by the legislature in the Code of Criminal Procedure. Pete, 589 S.W.3d
320, 324 (Tex. App.—Houston [14th Dist.] 2019) (orig. proceeding) (Spain &
Poissant, JJ., concurring).1

       As in Pete, there is a simple, meritorious basis for the court to deny the
petitions based on Texas Rule of Appellate Procedure 52.3(k)(1)(A)—the lack of a
proper appendix containing a certified or sworn copy of the documents showing the
matter complained of, i.e., the motion for judgment nunc pro tunc.2 Id. at 322.
Relator makes no express claim that he is unable to file the required appendix. See
In re Flanigan, 578 S.W.3d 634, 638 (Tex. App.—Houston [14th Dist.] 2019) (orig.
proceeding) (Spain, J., concurring).3

       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 others. And if for any reason the “others” don’t
cooperate, then it appears the answer to the incarcerated person is, “Too bad.”4

       1
         The court correctly points out the continuing lack of agreement within the court, but it
does not offer a substantive discussion regarding why the Pete two-judge concurrence is incorrect.
       2
         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
          The court cites Padilla v. McDaniel as justification for this court creating a general
requirement in criminal cases that incarcerated persons must in effect present motions—other than
a motion for new trial—to the trial court. I do not read Padilla as supporting adoption of this part
of the “extra rules.” 122 S.W.3d 805 (Tex. Crim. App. 2003).
       4
          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), that does not
conclusively prove what was sent. The “extra rules” require a “file-stamped copy,” for which the
                                                 2
       I do not understand why an appellate court believes it is appropriate to adopt
“extra rules” that effectively bar the 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.
But as 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.”5

       Rather than rely on “extra rules” the judiciary has no authority to adopt, I
concur in the denial of relator’s petitions for writs of mandamus solely based on
Texas Rule of Appellate Procedure 52.3(k)(1)(A).




                                              /s/       Charles A. Spain
                                                        Justice

Panel consists of Chief Justice Frost and Justices Jewell and Spain (Spain, J.,
concurring).
Publish — TEX. R. APP. P. 47.2(b).

cooperation of others is required. 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?
       5
        Furthermore, the “extra rules” the intermediate appellate courts have adopted are not
narrowly tailored to screen out vexatious litigants or frivolous requests for relief.
                                                    3
