                                  NO. 07-12-00127-CR

                             IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 19, 2012


                          IN RE PREFERRED BEEF, RELATOR


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Relator, Preferred Beef Group, has filed a petition for writ of mandamus seeking

relief from a third-party discovery order issued in a criminal case1 by respondent, the

Honorable Steven R. Emmert. We will deny the petition.


      In the trial court, Debra Massingham is charged with fraudulent use or

possession of identifying information.2 Her counsel obtained a subpoena duces tecum

requiring relator to produce certain employment records for a number of its employees.

Relator filed a motion to quash the subpoena which the trial court denied. Here, relator

challenges that order.


      Mandamus is appropriate in a criminal matter if the relator meets two

requirements.    First, it must show it lacks an adequate remedy at law such as by


      1
          State v. Massingham, No. 1217 (31st Dist. Ct., Lipscomb County, Tex.).
      2
          Tex. Penal Code Ann. § 32.51 (West 2011).
ordinary appeal. Dickens v. Court of Appeals, 727 S.W.2d 542, 550 (Tex.Crim.App.

1987) (orig. proceeding). Second, it must show the action it seeks to compel is a

ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v.

Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.Crim.App.

2007) (orig. proceeding). A relator’s petition will be denied if it fails to establish both

requirements. Id. The second requirement is satisfied by showing the relator has “a

clear right to the relief sought”; that is, “when the facts and circumstances dictate but

one rational decision under unequivocal, well-settled (i.e., from extant statutory,

constitutional, or case law sources), and clearly controlling legal principles.” Id.

(emphasis in original) (quoting Buntion v. Harmon, 827 S.W.2d 945, 947, 948 n.2

(Tex.Crim.App. 1992)).


       For this discussion, we accept relator’s apparent assumption that it has satisfied

the first requirement for mandamus.3 However, we find relator’s petition does not satisfy

the second requirement, by demonstrating that the only rational conclusion the trial

court could have reached under the facts and circumstances presented was to quash



       3
         Earlier this year in State v. Massingham, No. 07-11-0482-CR, 2012 Tex. App.
Lexis 84, at *2 (Tex.App.--Amarillo January 5, 2012, no pet.) (mem. op.) (not designated
for publication), we dismissed, for want of jurisdiction, relator’s attempted interlocutory
appeal of the trial court’s order now challenged by mandamus. Moreover, relator has
no standing to challenge an adverse pretrial discovery ruling through an ordinary appeal
after final disposition of the criminal proceeding. See Tex. Code Crim. Proc. Ann.
Chapter 44 (West 2006 & Supp. 2011); Tex. R. App. P. 25.2(a); Dickens, 727 S.W.2d at
550 (citing Tex. Bd. of Pardons & Paroles v. Miller, 590 S.W.2d 142, 143
(Tex.Crim.App. 1979) (orig. proceeding) (third-party aggrieved by adverse pretrial
discovery ruling has no adequate remedy beyond mandamus because it has no right of
ordinary appeal)).

                                            2
the subpoena. Among the several reasons the petition fails is the absence of any proof

of the “facts and circumstances presented” to the trial court. Appellate rule 52.7(a)(2)

specifies that a relator must file with the petition “a properly authenticated transcript of

any relevant testimony from an underlying proceeding, including any exhibits offered in

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

complained.” Tex. R. App. P. 52.7(a)(2). From relator’s petition, we cannot determine

whether the order complained of followed an evidentiary hearing, and if so, what

evidence the court heard.


       We note also the petition contains a narrative of factual statements, but is

missing the certification required by appellate rule 52.3(j).    Tex. R. App. P. 52.3(j).

Relator relies on three documents attached to the petition but none are sworn or

certified as required by appellate rule 52.7(a). Tex. R. App. P. 52.7(a).


       For these reasons, relator’s petition for writ of mandamus is denied.




                                                 Per Curiam




Do not publish.




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