


 
IN THE
TENTH COURT OF APPEALS
 










 
 

No. 10-06-00235-CV
 
In re
Carl Long
 
and
 
No.
10-06-00239-CV
 
In re
carl long
 
 

Original Proceeding
 

DISSENTING Opinion





 
I am not sure how many errors will be made
before the Court actually rules on the merits of Long’s two pending petitions
for writs of mandamus.  By a letter order, the majority is now granting Long’s
“Motion to Submit Newly Discovered Evidence to Support These Applications for
Mandamus.”  I would deny the motion.  By granting the motion to supplement the
mandamus record with “newly discovered evidence” that was not before the trial
court, the majority falsely implies that the supplemental evidence can be
considered.  It cannot.  When reviewing the trial court’s action by mandamus,
we are limited to the record before the trial court.  As the Dallas Court of
Appeals determined:
          After submission, the Martins twice
attempted to supplement the mandamus record with evidence that was not before
the trial court when it made its ruling.  We denied the Martins’ motions for
leave to file the supplemental evidence.  In a mandamus proceeding, a reviewing
court should consider only the evidence that was before the trial court when it
made its rulings.  A mandamus proceeding is not a hearing de novo on the
parties’ motions and responses.  See Bellair, Inc. v. Aviall of Texas, Inc.,
819 S.W.2d 895, 898 (Tex.App.—Dallas 1991, writ denied); Deerfield Land
Joint Venture v. Southern Union Realty Co., 758 S.W.2d 608, 610
(Tex.App.—Dallas 1988, writ denied).
 
Methodist Home v. Marshall, 830 S.W.2d 220, 232 (Tex. App.—Dallas 1992, no
pet.). Accordingly, I would deny the motion for leave to supplement the
mandamus record.  Because the majority grants the motion, I respectfully
dissent.
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Dissenting
opinion delivered and filed March 14, 2007

