Opinion
03-22-00304-CV
08-16-2024
In re Ronald Dean Strickland
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
Before Chief Justice Byrne, Justices Triana and Smith
OPINION
GISELA D. TRIANA, JUSTICE
Ronald Dean Strickland challenges the county court at law's March 30, 2022 order of remand, which left in place the justice court's order sustaining a contest to Strickland's indigency status and requiring him to file an appeal bond to pursue an appeal of the justice court's order dismissing his suit against iHeartMedia, Inc. For the following reasons, we conclude that the county court violated its ministerial duty to hold a de novo hearing on Strickland's indigency status, and we conditionally grant mandamus relief. See Schroeder v. Escalera Ranch Owners' Ass'n, Inc., 646 S.W.3d 329, 333 (Tex. 2022) ("[W]rits of mandamus can issue against a public official to compel the official to perform a ministerial act.").
Strickland timely filed an appeal of the justice court's July 23, 2021 order sustaining the contest to his indigency on the same day the order was signed. See Tex. R. Civ. P. 506.1(d)(3) (requiring appellant who filed Statement of Inability to Afford Payment of Court Costs in lieu of appellate bond or cash deposit to appeal justice court's order sustaining indigency contest within seven days of written order). Rule 506.1(d)(3) establishes that after the justice court receives notice of appeal of an indigency-contest order, it "must then forward all related documents to the county court for resolution." Id. The Rule further requires as follows:
The county court must set the matter for hearing within 14 days and hear the contest de novo, as if there had been no previous hearing, and if the appeal is granted, must direct the justice court to transmit to the clerk of the county court the transcript, records, and papers of the case, as provided in these rules.Id. (emphasis added).
The county court's March 30, 2022 "Order of Remand" states that the county court determined that it lacked jurisdiction over the appeal of the indigency-contest order because "[o]n appeal from a Justice Court order on a contested pauper's affidavit, the matter was not set for hearing within 5 days as required under Tex.R.Civ.P. 510.9(c)(3)." As an initial matter, the county court did not apply the correct rule to Strickland's appeal from the justice court's order sustaining the indigency contest because Strickland's case is a small-claims case governed by Rules 500-507, not an eviction case governed by Rule 510. Compare id. R. 500.3(a) (establishing rules applicable to claims for money damages of $20,000 or less) with id. R 500.3(d) (establishing rules governing eviction cases). Both Rule 510.9(c)(3) and Rule 506.1(d)(3) set forth the same process for appealing a justice court's indigency-contest order to county court, but the time frame within which "[t]he county court must set the matter for hearing" is five days in eviction cases governed by Rule 510.9(c)(3), instead of fourteen days as provided by Rule 506.1(d)(3). Compare id. R. 506.1(d)(3), with id. R. 510.9(c)(3) (emphasis added).
Contrary to the dissent's suggestion that we had "to scour the record in search of a challenged order" and "formulate an argument for him," dissenting slip op. at 7, in his initial filing with this Court, Strickland identified his desire "to alter the trial court's Remand Notice Sustaining the Denial of Defendant's Affidavit of Inability to Pay Cost," and in his brief, Strickland's prayer for relief requests that we remand the case for a new trial. Although he identified the notice date, instead of the order date, the Texas Supreme Court has cautioned appellate courts on numerous occasions that we should reach the merits of a case "whenever reasonably possible" and not dispose of them "based on harmless procedural defects." E.g., Horton v. Stovall, 591 S.W.3d 567, 567 (Tex. 2019) (per curiam). In every case, in addition to construing briefs liberally, as we are required to by the rules of appellate procedure, we review the record and the relevant substantive law when determining whether to grant the requested relief. As discussed in more detail below, the trial court's failures to apply the correct law and to perform its ministerial duty to conduct a de novo hearing are apparent from the face of the remand order, which states in boldface type that the matter was not set for hearing.
We construe the wording in both Rule 506.1(d)(3) and Rule 510.9(c)(3) as requiring the county court to set the matter for hearing. When "construing procedural rules, we 'apply[] the same rules of construction that govern the interpretation of statutes.'" See In re Millwork, 631 S.W.3d 706, 711 (Tex. 2021) (orig. proceeding) (quoting In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007) (orig. proceeding)). "When a rule of procedure is clear and unambiguous, we construe the rule's language according to its plain or literal meaning." In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 437.
The duty to set the hearing does not fall on the appealing party. These rules are worded similarly to the statute governing de novo hearings from an associate judge's rulings and recommendations to the referring court. See generally Tex. Fam. Code §§ 201.001-.018 (allowing associate judge to hear certain matters and issue report in form of proposed order and providing right to de novo hearing before referring court). Under Texas Family Code Section 201.015, when a party timely requests a de novo hearing by filing a written request with the clerk of the referring court, "[t]he referring court, after notice to the parties, shall hold a de novo hearing not later than the 30th day after the date on which the initial request for a de novo hearing was filed with the clerk of the referring court." Id. § 201.015(f) (emphasis added).
When a party timely appeals from the report of an associate judge, the requirement that the referring court "shall hold a de novo hearing" is mandatory. E.g., Attorney Gen. of Tex. v. Orr, 989 S.W.2d 464, 469 (Tex. App.-Austin 1999, no pet.). Courts presume that the failure to hold such a hearing is harmful. Id. The purpose of Section 201.015(f) is to require the prompt resolution of appeals from an associate judge's rulings. In re Texas Dep't of Fam. & Protective Servs., No. 03-23-00155-CV, 2023 WL 4534970, at *3 (Tex. App.-Austin July 14, 2023, orig. proceeding) (mem. op.); Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex. App.-Dallas 2001, no pet.) (citing Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex. App.-El Paso 1998, no pet.); Ex parte Brown, 875 S.W.2d 756, 760 (Tex. App.-Fort Worth 1994, orig. proceeding)). The thirty-day requirement is not jurisdictional; instead, it "affords the parties the right to compel the district court to hear the case promptly." Harrell, 986 S.W.2d at 631; see also State v. $435,000.00, 842 S.W.2d 642, 644 (Tex. 1992) (per curiam) (holding that consequence of trial court's failure to expeditiously consider forfeiture case under statute requiring that "a time for hearing on forfeiture shall be set within 30 days" of claimant's answer was not dismissal of case; instead, claimant was entitled to hearing within 30 days and prompt trial setting and mandamus relief had trial court refused to provide either); cf. AC Ints., L.P. v. Texas Comm'n on Env't Quality, 543 S.W.3d 703, 714 (Tex. 2018) ("Failure to comply with a directory provision has consequences, but they are not always fatal."). "The requirement is a deadline for the trial court, not the parties." Fountain, 45 S.W.3d at 739 . When a party has filed a notice of appeal, it has completed the prerequisites necessary to be entitled to a de novo hearing. Id.
We conclude that these same principles apply to Rule 506.1(d)(3)'s requirement that when a party appeals from a justice court's indigency-contest order, "[t]he county court must set the matter for hearing within 14 days and hear the contest de novo, as if there had been no previous hearing." Tex.R.Civ.P. 506.1(d)(3) (emphasis added). The requirement that the county court set the matter for hearing within 14 days is mandatory. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (explaining that terms "must" and "shall" "are generally recognized as mandatory, creating a duty or obligation"); Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (citing State v. City of Greenville, 726 S.W.2d 162, 169 (Tex. App.-Dallas 1986, writ ref'd n.r.e.) ("A statutory provision is generally regarded as mandatory where the power or duty to which it relates is for the public benefit, good, interest or protection, for the security of public rights, or for the advancement of public justice." (emphasis added))). The 14-day requirement is not jurisdictional; instead, it affords the parties the right to compel the county court to hear the case promptly. See, e.g., Harrell, 986 S.W.2d at 631; see also $435,000.00, 842 S.W.2d at 644 ("If the Legislature had intended dismissal to be the consequence of a failure to hear a forfeiture case within the prescribed period, it could easily have said so, as it did for example in formerly prescribing a limitations period for forfeiture actions . . . ."). As the Texas Supreme Court held in $435,000, "if a trial court refuses [to hear the case promptly], the statute [here, the rule] provides a basis for relief by mandamus." 842 S.W.2d at 644. In other words, the county court has a ministerial duty to conduct a de novo hearing on a justice court's indigency order, and it has no discretion to refuse to do so. See Schroeder, 646 S.W.3d at 333 ("An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion." (quoting Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)). Thus, when Strickland filed his notice of appeal of the indigency contest in county court, he completed the prerequisites necessary to be entitled to a de novo hearing.
Contrary to the dissent's characterization of our holding, we do not conclude "that the county court's dismissal of Strickland's indigency appeal for want of jurisdiction was a clear abuse of the county court's discretion." Dissenting slip op. at 2-3. We hold that the county court failed to comply with its ministerial duty to conduct a hearing. It had no discretion to refuse to do so.
In this Court, Strickland filed his challenge to the county court's order remanding his case without conducting a de novo hearing under Rule 145(g)(1), which applies only to indigency contests that arise based on Statements of Inability to Afford Payment of Court Costs filed in the county or district court for suits originating in those courts and thus allows appeals to this Court only from those orders. Compare Tex. R. Civ. P. 145(g)(1) (Part II. Rules of Practice in District and County Courts) (allowing declarant to challenge "an order issued by the trial court under this rule. . . . by motion filed in the court of appeals with jurisdiction over an appeal from the judgment in the case" (emphasis added)), with id. R. 500.3(e) (Part V. Rules of Practice in Justice Courts) (governing application of other rules in justice-court cases and establishing that "[t]he other Rules of Civil Procedure and the Rules of Evidence do not apply except: (1) when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties; or (2) when otherwise specifically provided by law or these rules"). Rule 500.3(e), when read together with Rules 506.1(d)(3), 506.1(d)(4), and 145(g)(1), does not allow an appeal of an indigency contest originating in justice court to this Court.Although we typically construe an appeal as a mandamus petition only when the party specifically requests such treatment in the alternative, because we consider Strickland's challenge to the order denying him indigency status and his request for a new trial to implicate issues of due process and access to justice, see, e.g., Tex. Const. art. I, § 13, we conclude that Strickland filed his challenge here in a bona fide attempt to invoke this Court's jurisdiction. See In re J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016) ("We have stressed that 'courts should acknowledge the substance of the relief sought despite the formal styling of the pleading.'" (quoting Ryland Enters., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011))); see also Tex. R. App. P. 2 (allowing appellate court on its own motion to "suspend a rule's operation in a particular case and order a different procedure"); cf., e.g., CMH Homes v. Perez, 340 S.W.3d 444, 453-54 (Tex. 2011) (reversing court of appeals judgment dismissing interlocutory appeal for lack of jurisdiction and remanding to court of appeals to consider appeal as petition for writ of mandamus when party had expressly requested in alternative mandamus treatment of its appeal).
Strickland's case differs from the cases cited by the dissent in which courts of appeals determined that they lacked jurisdiction over appeals from county courts' orders on indigency contests because no statute authorizes an interlocutory appeal to courts of appeals from those indigency-contest orders. Dissenting slip op. at 2. In those cases, unlike this case, the county courts had not dismissed appellants' appeals from the justice courts' indigency orders for want of jurisdiction. Instead, the county courts concluded that the appellants were not indigent. See McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649, at *1 (Tex. App.-Austin Feb. 10, 2000, no pet.) (mem. op.) (county court conducted two hearings before determining appellant was not indigent); El-Bey v. Estate of Williams, No. 01-23-00070-CV, 2023 WL 4239852, at *1 (Tex. App.-Houston [1st Dist.] June 29, 2023, pet. denied) (mem. op.) (per curiam) ("Here, the county court's order denies appellant's appeal of the justice court's order sustaining the contest of his statement of inability to pay."); Redlich v. Ranch, No. 02-14-00390-CV, 2015 WL 226038, at *1 (Tex. App.-Fort Worth Jan. 15, 2015, no pet.) (mem. op.) (per curiam) (county court sustained contest to affidavit of inability to pay). Here, the county court failed to comply with its ministerial duty to conduct the required de novo hearing to determine whether Strickland is indigent.
Although Rule 145(f)(4) provides that when a county court or district court sustains an indigency contest originating in those courts and requires a litigant to pay costs, the court must state in conspicuous type in its order: "You may challenge this order by filing a motion in the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145," the Rules of Civil Procedure do not require the justice court's order sustaining a contest to contain similar language informing litigants of the right to appeal to county court and referring litigants to Rule 506.1(d)(3) (or Rule 510.9(c)(3) for evictions).
The dissent mischaracterizes the Court's holding as agreeing that Strickland has not invoked this Court's jurisdiction. See dissenting slip op. at 2. To the contrary, we conclude that Strickland's challenge to the county court's order invokes our mandamus jurisdiction. See Te x . Gov't Code § 22.221(b). Accordingly, we have restyled the case name to In re Ronald Dean Strickland.
The dissent asserts that the Court's construction of Strickland's appeal as a petition for writ of mandamus results in giving him an unfair advantage over litigants represented by counsel. Dissenting slip op. at 8. The implication that we are treating Strickland differently than other litigants because of his pro se status is inaccurate. In this particular circumstance, where the trial court's failure to perform its ministerial duty is apparent from the face of the challenged order, no "independent review of the record to identify error" was necessary, see id., and we would employ this same procedure even if Strickland had been represented by counsel. As explained above, we acknowledge that our typical practice is to construe an appeal as a mandamus petition only when the party specifically requests such treatment in the alternative, but we explain that we are deviating from that practice here only because we consider Strickland's challenge to the order denying him indigency status to implicate issues of due process and access to justice. See Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 353 (Tex. 1996) (orig. proceeding) ("Our state Constitution and our rules of procedure recognize that our courts must be open to all with legitimate disputes, not just those who can afford to pay the fees to get in."). Our decision to construe the appeal as a request for mandamus relief has nothing to do with Strickland's pro se status and everything to do with the county court's failure to comply with its ministerial duty to set Strickland's appeal of his indigency status for a hearing and the ramifications of that failure for access to justice.
One of the dissent's criticisms of our decision to construe this appeal as a mandamus proceeding is that the lack of a reporter's record is problematic. Dissenting slip op. at 5. However, no reporter's record exists because the county court failed to comply with its ministerial duty to conduct a de novo hearing. Moreover, the issue we address here is a purely legal issue requiring us to construe the rules related to indigency contests and determine whether the county court violated its ministerial duty under those rules to conduct a de novo hearing when Strickland timely filed an appeal from the justice court's indigency-contest order.
We further note that this Court recently followed a similar procedure in an opinion authored by the dissenting justice, In re Texas Department of Family and Protective Services, 2023 WL 4534970, construing the Department's appeal as a request for mandamus relief-without any request from the Department to do so, even after a letter from the Court questioning our jurisdiction over the appeal, and over the appellee father's request that we dismiss the Department's appeal because it had not sought mandamus relief. In that case, unlike this one, the Court provided no rationale for its decision to treat the appeal as a mandamus proceeding. See id. at *2. The judicial-efficiency rationale that the dissent now presents for that decision applies with equal force here-it would be judicially inefficient to dismiss Strickland's appeal for want of jurisdiction when he is entitled to mandamus relief from the county court's failure to conduct a de novo hearing merely because he failed to expressly request that form of relief in the alternative when he challenged the order and requested that we remand for a hearing. However, we stress that our decision in this case to grant mandamus relief in the absence of an express request rests primarily on our due-process and access-to-justice concerns, and it is limited to this particular set of facts.
For the reasons stated above, under the special circumstances present here, we treat Strickland's challenge to the county court's order procedurally and substantively as a petition for writ of mandamus and conclude that he lacks an adequate appellate remedy for the county court's failure to set a de novo hearing on his challenge to the justice court's order sustaining the contest to his indigency, as required by Rule 506.1(d)(3). See Tex. R. Civ. P. 145(g)(1), 500.3(e), 506.1(d)(3)-(4). We recognize that "[m]andamus relief is an 'extraordinary remedy,'" and we issue it here "only to correct . . . the violation of a duty imposed by law when there is no other adequate remedy by law." See In re Rogers, 690 S.W.3d 296, 302 (Tex. 2024) (orig. proceeding) (quoting In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding), and Walker v . Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). W e further conclude that the county court violated its ministerial duty to set the matter for hearing and conduct a de novo hearing. See id. R. 506.1(d)(3); see also Ex parte Brown, 875 S.W.2d at 760 (concluding that referring court's refusal to promptly conduct de novo hearing provides basis for mandamus relief). Therefore, we conditionally grant mandamus relief and direct the county court to vacate its March 30, 2022 order remanding the case to the justice court and to conduct a de novo hearing on the contest to Strickland's Statement of Inability to Afford Payment of Court Costs. W e are confident that the trial court will comply, and our writ will issue only if it does not.
DISSENTING OPINION
Edward Smith, Justice
I disagree with the majority's conclusion that Strickland's appeal should be construed as a petition for writ of mandamus. In my opinion, this is an attempted appeal of the county court's order of remand. As this is a non-final, non-appealable order, the appeal should be dismissed for want of jurisdiction.
"Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments." CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). "An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The majority opinion agrees that, based on this record, we are unable to locate either a final judgment or any order disposing of all claims and parties. And a county court's decision denying a party's attempt to appeal from the justice court without furnishing a bond or paying a cash deposit is not among the list of appealable interlocutory orders. See Tex. Civ. Prac. & Rem. Code § 51.014(a); see also McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649, at *1 (Tex. App.-Austin Feb. 10, 2000, no pet.) (mem. op.) (where county court disapproved indigency request and returned file to justice court, and record reflected no proceeding beyond county clerk's notation that she was returning record to justice court, there was no final appealable order, and court of appeals lacked jurisdiction over appeal); Redlich v. Ranch, No. 02-14-00390-CV, 2015 WL 226038, at *1- 2 (Tex. App.-Fort Worth Jan. 15, 2015, no pet.) (per curiam) (mem. op.) (dismissing for lack of jurisdiction appeal from county court order sustaining contest to affidavit of inability to pay on appeal from justice court); El-Bey v. Estate of Williams, No. 01-23-00070-CV, 2023 WL 4239852, at *1 (Tex. App.-Houston [1st Dist.] June 29, 2023, pet. denied) (mem. op.) (dismissing for lack of jurisdiction appellant's appeal of justice court's order sustaining contest of statement of inability to pay costs). The record indicates that the final order entered was the county court's dismissal order that stated:
[T]his court lacks jurisdiction over this action [because] [o]n appeal from a Justice Court order on a contested pauper's affidavit, the matter was not set for hearing within 5 days as required under Tex.R.Civ.P. 510.9(c)(3). Therefore, the Justice Court's order sustaining the contest and requiring an appeal bond stands.
The record does not reveal what, if any, further proceedings occurred at the justice court nor does it contain any subsequent order or judgment from the county court. Accordingly, the majority agrees, because we cannot locate a final, appealable order in the record, and because we cannot find any statute authorizing this appeal on an interlocutory basis, Strickland has not invoked this Court's jurisdiction.
However, the majority has decided to construe Strickland's appeal as a request for mandamus relief. Specifically, the majority concludes that the county court's dismissal of Strickland's indigency appeal for want of jurisdiction was a clear abuse of the county court's discretion because the county court failed to set a de novo hearing under Rule 506.1(d)(3) and that this error may be remedied only by a petition for writ of mandamus. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding) (providing that, to be entitled to mandamus relief, relator must show both that trial court clearly abused its discretion and that relator has no adequate remedy by appeal). However, Strickland's briefing neither expressly seeks mandamus relief nor indicates that this Court should construe his appeal as an original proceeding. He filed a "Notice of Appeal" where he referred to the action as an "appeal," and his brief specifically states he is "appealing the order mentioned herein that orders he pay the court cost and/or an appeal bond." Similarly, his prayer for relief "asks the Court to reverse the judgment of the trial court and remand the case for a new trial." Strickland only refers to the appeal as a "proceeding" in one of the title pages of his brief, and he uses the word "respondent" when describing the county clerk in his "Identity of Parties and Counsel" section of his brief. Otherwise, he uses wording consistent with an appeal, not an original proceeding. The Texas Supreme Court and intermediate courts have routinely declined to construe an appeal as a petition for writ of mandamus without a direct or indirect request by the litigant; instead, relevant case law indicates that courts tend to construe attempted appeals as original proceedings where the party filed both an appeal and petition for writ of mandamus, where the litigant asked for mandamus relief in the alternative, where the litigant's liberty was in danger of restriction, or when the courts find it is in the interest of judicial efficiency. See CMH Homes, 340 S.W.3d at 452-53 (court of appeals was required to construe appeal as original proceeding where appellant specifically requested mandamus relief in alternative as to prevent "form from overriding substance"); id. at 454 (directing court of appeals to consider appeal as petition for writ of mandamus because "judicial efficiency mitigates against requiring" filing of separate original proceeding); Seals v. Seals, No. 03-22-00310-CV, 2023 WL 6449098, at *4 (Tex. App.-Austin Oct. 4, 2023, pet. dism'd w.o.j.) (construing-but denying-appellant's attempted appeal of contempt order as petition for writ of mandamus in interest of judicial economy where brief was styled "Original Proceeding," and trial judge was referenced as "Respondent"); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.-Dallas 2007, no pet.) (noting that although appellant's issues attacked contempt order, which is not reviewable on direct appeal, appellate court was "compelled" to address validity of contempt order based on "the unique facts of this case and given that the case has been briefed, argued, and contains both the clerk's and reporter's records"); Haffelfinger v. Adams, No. 03-12-00512-CV, 2013 WL 6178570, at *1 (Tex. App.-Austin Nov. 21, 2013, no pet.) (mem. op.) (construing-but denying-petition for writ of mandamus where party attempted to appeal trial court's order refusing to hold party in contempt even though party did not request mandamus relief). None of those situations is present here, and accordingly, I do not believe that the majority's decision to construe this appeal as an original proceeding and grant mandamus relief is in the interest of judicial efficiency.
I recognize that Strickland is proceeding pro se and that courts are to "construe pro se pleadings and briefs liberally." Canada v. State, 547 S.W.3d 4, 10 (Tex. App.-Austin 2017, no pet.). However, pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam) (to prevent unfair advantage over litigants represented by counsel, pro se litigants are held to same standards as licensed attorneys and are required to comply with applicable laws and procedural rules). Despite this liberal construction, Strickland's briefing lacks proper argument and citation to the record, leaving nothing for us to review. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); see also Tex. R. App. P. 52.3(h) (providing same for petition for writ of mandamus); WorldPeace v. Commission for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (providing that failure to provide appropriate record citations or substantive analysis waives appellate issue); see Gruss v. Gallagher, 680 S.W.3d 642, 662 (Tex. App.-Houston [14th Dist.] 2023, no pet.) (concluding that judicial efficiency did not mitigate against requiring appellants to file separate original proceeding where, even construing appellants' opening brief liberally, appellants had not shown their entitlement to mandamus relief due to their failure to adequately brief argument); see Copeland v. Federal Nat'l Mortg. Ass'n, No. 03-16-00030-CV, 2016 WL 6407305, at *1 (Tex. App.-Austin Oct. 28, 2016, pet. dism'd w.o.j.) (mem. op.) (holding pro se appellant to standards set out in Texas Rules of Appellate Procedure 38.1(i)). And unlike some of the previously cited cases where courts construed an appeal as a request for mandamus relief, here we lack the benefit of clarity of the parties' arguments because we do not have a reporter's record.
In addition, while appellate courts favor substance over form, CMH Homes, 340 S.W.3d at 452-53, Strickland's attempted appeal is defective as to both. Strickland's briefing loosely points us to his desire to appeal the county court's remand order but otherwise is void of any argument as to how the trial court's order constituted a clear abuse of discretion and with clear citations to the record. Rather, Strickland's appellant's brief contains exact excerpts from a Fourth Court of Appeals opinion in Strickland's related case in Bandera County. See Strickland v. iHeartMedia, Inc., 668 S.W.3d 34 (Tex. App.-San Antonio 2022, pet. denied). In that case, Strickland appealed the trial court's finding under Rule 145(h) that he was not indigent. Id.; see Tex. R. Civ. P. 145 (governing relevant procedures regarding party's filing of Statement of Inability to Afford Payment of Court Costs in district or county court). The Fourth Court of Appeals reversed the trial court's order, holding that Strickland had carried his burden to prove his inability to afford costs under Texas Rule of Civil Procedure 145 and was therefore entitled to a free record on appeal. Strickland, 668 S.W.3d at 37. While this case may have been ancillary to the present one, the issues and procedural posture are distinctly dissimilar to the issues and procedural posture present here. Thus, even taking into account Strickland's pro se status, his copying and pasting of that opinion does not present any issue for us to review and thus his appeal fails to invoke our jurisdiction.
Even after this Court informed Strickland that this Court may lack jurisdiction over this appeal and requested a response, Strickland still did not expressly request mandamus review or otherwise include any language indicating his desire to pursue extraordinary relief.
The majority argues that the dissent's position is inconsistent with a previous case this Court construed an appeal as a request for mandamus relief despite no express request from the appellant. See In re Texas Dep't of Fam. & Protective Servs., No. 03-23-00155-CV, 2023 WL 4534970 (Tex. App.-Austin July 14, 2023, no pet.) (mem. op.). However, in that case, the appellant's requested relief was clear and unequivocal from the face of its brief: the appellant sought a declaration from our Court that a trial court's order granting a new trial-issued after the trial court allegedly lost plenary power-was void. In that instance, and as the appellee in that case agreed, the proper remedy is mandamus relief. See In re Southwest Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); see also In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 200 (Tex. 2009) (orig. proceeding) (reaffirming that order granting new trial is not reviewable on direct appeal, while allowing mandamus review of order granting new trial under certain circumstances). The appellee in that case asked this Court to dismiss the suit for want of jurisdiction, arguing that mandamus relief was the proper remedy but appellant had failed to expressly request it. That case presented a clear form-over-substance issue; it would not have been judicially efficient to dismiss the appeal for want of jurisdiction when we knew specifically what trial court order was being challenged, what relief the appellant sought, and the reasons why appellant believed the trial court erred. Here, on the other hand, Strickland's briefing requires us to scour the record in search of a challenged order and requires us to formulate an argument for him. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931-32 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("It is not [an appellate court's] duty to review the record, research the law, and then fashion a legal argument for appellant when [appellant] has failed to do so."). In fact, it is not until appellee references the county court's March 30, 2022 "Order of Remand" in its appellee's brief that Strickland finally specifies that that is the order he intends to "appeal." Specifically, Strickland's reply brief states:
Appellant was not made aware of an order signed by Judge Wong, denial and remand, and therefore was unable to include it. Also Appellant was unaware that the matter was remanded to the Justice Court for payment of fees and appeal bond. Since[ ] Appellee in it's [sic] brief has stated facts unknown to Appellant, Appellant does wish to [a]ppeal Judge Wong's order of denial and remand in this case.See Tex. R. App. P. 38.3; Stovall & Assoc. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 803 (Tex. App.-Dallas 2013, no pet.) (appellant's newly-raised issues asserted for first time in his reply brief are ordinarily deemed waived and not properly before reviewing court for determination). Even when Strickland references the order in his reply brief, he mentions nothing about the county court's failure to provide him with a hearing-which is the majority's main rationale for granting mandamus relief. Instead, Strickland continues to argue the merits of his indigency challenge, stating: "Judge Wong abused his discretion, and errered [sic] in this matter, because it is true that Appellant is indigent." Accordingly, the case at hand is thoroughly distinguishable from In re Texas Department of Family and Protective Services.
In my opinion, the majority's approach results in giving Strickland an unfair advantage over litigants represented by counsel. See Green, 157 S.W.3d at 444. In my view, construing Strickland's appeal as a petition for writ of mandamus, absent any express or implied request by Strickland, and performing an independent review of the record to identify error, is problematic. See Jonson v. Duong, 642 S.W.3d 189, 194 (Tex. App.-El Paso 2021, no pet.) ("[a]s a reviewing court, we have no duty-or even right-to perform an independent review of the record and applicable law to determine whether there was error. Were we to do so, even on behalf of a pro se appellant, we would be abandoning our role as neutral adjudicators and become an advocate for that party.") (cleaned up).
For these reasons, I would dismiss this appeal for want of jurisdiction. I respectfully dissent.