News & Insights

Procedural Mandamus Issues: Staying Related Cases and In Camera Documents

Houston Bar Association Appellate Practice Section

February 27, 2023


Every appellate practitioner will likely, at some point, be called upon to help with an original proceeding in one of the Texas courts of appeals. This article highlights a couple recent rulings on procedural mandamus issues related to (1) staying related cases and (2) ensuring that documents presented to the trial court in camera are effectively made part of the mandamus record.
This article does not purport to be a comprehensive summary of all procedural considerations for mandamus proceedings. Section 3 of the Texas Rules of Appellate Procedure provides the procedural rules governing mandamus proceedings (i.e., Rules 52.1-52.11). For purposes of this article, Rules 52.10 and 52.7 are most relevant to the issues raised.

I. Stay of related cases.

Parties to mandamus proceedings often seek emergency relief during the pendency of the mandamus proceeding. Rule 52.10 allows the appellate court to give temporary relief pending its action on the mandamus petition itself. Note the following three emphasized phrases:

(a) Motion for Temporary Relief; Certificate of Compliance. The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court’s action on the petition. The relator must notify or make a diligent effort to notify all parties by expedited means (such as by telephone or fax) that a motion for temporary relief has been or will be filed and must certify to the court that the relator has complied with this paragraph before temporary relief will be granted.

(b) Grant of Temporary Relief. The court—on motion of any party or on its own initiative—may without notice grant any just relief pending the court’s action on the petition. As a condition of granting temporary relief, the court may require a bond to protect the parties who will be affected by the relief. Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.

(c) Motion to Reconsider. Any party may move the court at any time to reconsider a grant of temporary relief.

Tex. R. App. P. 52.10 (emphasis added).

Note that Rule 52.10(a) in particular allows the appellate court to “stay any underlying proceedings.” Id. In complex litigation, for a variety of reasons, there may be multiple related proceedings. An appellate court ruling in one may significantly impact the other related cases as well. If a mandamus is taken from only one of those proceedings, can the appellate court stay other related proceedings?

A recent ruling from the First Court of Appeals suggests that the answer is “no”—but the order making this ruling is by no means conclusive.

By way of background, this ruling came from an appeal—not from a mandamus proceeding. The appellant “filed a motion for emergency relief” requesting various rulings, including asking the First Court for relief from an “alleged oral order.” D&R USA Enterps. v. SCF RC Funding IV, LLC, No. 01-22-00891-CV (Tex. App.—Houston [1st Dist.] Dec. 13, 2022, order). The appellant, however, did not provide “documentation of the order to show that it was entered in the trial court cause on appeal in this case.” Id. Justice Hightower, who authored the order, noted that, while “general authority [exists] that permits an appellate court to grant stays in accelerated appeals and original proceedings,” the appellant offered “no authority permitting this Court to stay proceedings in a different trial court cause than the one involved in the appeal.” Id. Accordingly, the court denied the motion for emergency relief. Id.

That order, with its general reference to an appellate court’s power in original proceedings, lends some support to the view that Rule 52.10(a) allows the appellate court to stay the underlying proceedings only in the trial court proceeding from which the mandamus arises.

But the D&R Enterprises order is not conclusive. This order does not analyze the text of Rule 52.10. That observation is not meant as a criticism; this is understandable given that this order was issued in an appeal and not a mandamus proceeding—and that the appellant did not cite Rule 52.10. But one may ask whether a detailed textual analysis compels a different result.

One may accept the premise that Rule 52.10(a)’s phrase “stay any underlying proceedings” gives the appellate court authority to stay only the proceedings from which the mandamus arises and not related proceedings. But what about Rule 52.10(a)’s language that the appellate court can grant “any other temporary relief pending the court’s action on the petition”? What about Rule 52.10(b)’s language that the appellate court has authority to grant “any just relief”? Does either phrase compel a different result with regard to an appellate court’s power to stay related proceedings? This ruling does not specifically answer these questions.

Beyond raising these questions to the appellate court, practitioners have other avenues to stay related proceedings as well. The parties may simply agree to stay deadlines in the related case. Or the party seeking to stay a related proceeding may ask for relief from the trial court in which the related proceeding is pending.

II. Documents presented to the trial court in camera.

Parties also often face complications when dealing with sensitive documents in a mandamus proceeding. The most relevant rule requires that the party bringing the mandamus proceeding (the relator) “must file” a mandamus record:

(a) Filing by Relator Required. Relator must file with the petition:

(1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding; and

(2) a properly authenticated transcript of any relevant testimony from any 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.

Rule 52.7 may provide a complication if relevant documents were presented to the trial court in camera. How does a relator get those documents to the court of appeals?

Entire articles have been written about this topic. See, e.g., Kyle Lawrence, Confidential and Privileged Information on Appeal: Sealed Records and In Camera Submissions, 31st Annual Texas State Bar CLE Advanced Civil Appellate Practice, 2017 WL 5814942 (2017). This article will not duplicate the work done by those authors. Instead, it will highlight one recent decision from the Dallas Court of Appeals that both highlights the potentially fatal impact that a failure to properly transmit in camera documents to the appellate court may have on a mandamus proceeding and gives a standard for the bare minimum that is required to satisfy Rule 52.7.

The general obligations of a relator in an original proceeding were well-established. The party “seeking relief [has] the burden of providing this Court with a sufficient record to establish their right to mandamus relief.” Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). The Dallas Court noted that this “burden to provide this Court with a sufficient record requires Relators to request that any documents submitted to the trial court for in camera inspection be carried forward under seal so that the appellate court can evaluate this information.” In re Barnes, 655 S.W.3d 658, 668 (Tex. App.—Dallas 2022, orig. proceeding [mand. pending]). “Because the record in an original proceeding is assembled by the parties, this Court strictly enforces the authentication requirements of rule 52 to ensure the integrity of the record.” Id. at 669.

The Dallas Court stated that the Barnes relator had several deficiencies in bringing the in camera documents to the appellate court:

Relators submitted documents to this Court with an “In Camera Motion,” stating that they did so to protect their assertion of privilege and objections and so “that this Honorable Court may make its own determination as to whether said records, attached [t]hereto as Exhibit 1, are privileged.” In doing so, Relators’ counsel merely represented that, “Relators provide the Court with the privileged records made the subject of the trial court’s order. . . .”
The documents also appear to be in response to Relators’ request for their own records, not RPI’s request pursuant to its depositions on written questions
The documents submitted to this Court are not certified by, or under seal of, the trial court, or otherwise properly established to be the records reviewed below.
. . .
Here, Relators did not file with this Court an affidavit or unsworn declaration executed by a person with knowledge of relevant facts swearing under penalty of perjury that the documents submitted to this Court in camera are true and correct copies of the original documents submitted to the trial court in camera.
. . .
Simply, we have no means to verify that the documents tendered to this Court in camera are the same documents Relators tendered to the trial court. Even assuming without deciding that Relators may supplement the mandamus record by submitting the records to this Court in camera, Relators failed to comply with the Texas Rules of Appellate Procedure when doing so.

Id. at 668-69 (internal citations omitted) (emphasis added).

The justices on the panel split over the impact of these failures on the viability of mandamus relief. The majority held:

Fortunately for Relators, to reach our determination here we have a sufficient mandamus record because a review of the health care records is not critical to our determination. The outcome might have been otherwise had it been necessary for us to do so.

Id. at 669-70.

It then decided that the relator was entitled to some relief on the merits. On the other hand, the dissenting judge would have denied mandamus relief based on these failures to comply alone:

This Court may not address the merits of any petition for writ of mandamus absent strict compliance with Rule 52 of the Texas Rules of Appellate Procedure. Relators fail to comply with Rule 52, as the majority concedes. . . . Accordingly, I would follow Texas Rule of Appellate Procedure 52 and this Court’s precedent and deny mandamus relief without addressing the merits.

In re Barnes, 665 S.W.3d at 676-77 (Pedersen, J., dissenting).

Notably, Justice Pedersen did not expressly address the majority’s statement that a review of the in camera documents was not critical to its determination of the merits. See Barnes, 655 S.W.3d at 669-70. Failure to provide a record in compliance with Rule 52.7 alone appeared to be enough to doom the mandamus in the dissent’s view.

An appellate practitioner should not allow the outcome of a mandamus to be placed at risk that the Barnes dissent’s view prevails—especially when the mandamus is otherwise meritorious. At a minimum, an appellate lawyer should ensure that there is some way (such as the affidavit missing in Barnes) that the appellate court can verify that the documents tendered to the appellate court are the same documents the Relators tendered to the trial court.

* * *

Mandamus proceedings often pose unique considerations. Complex cases often pose even more complex procedural questions. Appellate practitioners should keep up-to-speed on rulings made by the courts in these proceedings, especially on procedural issues, so that they are ready to go when an emergency that does not permit much time for in-depth research in the form of a last-minute complex mandamus proceeding arises.

Nicholas Bruno 713.951.6232