Opinion
NO. 01-17-00082-CV
02-03-2017
IN RE RAPHIZA BURKE, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Raphiza Burke, has filed a petition for writ of mandamus challenging the trial court's order awarding interim attorney's fees in the underlying suit to modify the parent-child relationship. We deny the petition.
The underlying case is In the Interest of C.C., a Child, cause number 2011-55986, pending in the 310th District Court of Harris County, Texas, the Honorable Lisa Millard presiding.
Relators bear the burden of demonstrating their entitlement to mandamus relief. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). This burden includes providing this court with a record sufficient to make that showing. See Walker, 827 S.W.2d at 837 (stating that it is relator's burden to provide a record sufficient to establish her entitlement to mandamus relief); In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (stating that "[t]hose seeking the extraordinary remedy of mandamus must follow the applicable procedural rules. Chief among these is the critical obligation to provide the reviewing court with a complete and adequate record.") (footnote omitted).
After reviewing the record provided, we conclude that the record fails to include all of the relevant documents and transcripts required by Texas Rule of Appellate Procedure 52.7(a).
Texas Rule of Appellate Procedure 52.7(a)(1) requires that relators file with their petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in the underlying proceeding." TEX. R. APP. P. 52.7(a)(1). Among other things, Burke's petition fails to include a copy of the September 4, 2014 order that she seeks to modify in the underlying action. This order and other documents relating to the underlying modification action are material to determining Burke's claims, including her claim that the trial court abused its discretion to the extent that its award of attorney's fees was based upon finding her modification suit to be frivolous or designed to harass. See TEX. FAM. CODE § 156.005.
Texas Rule of Appellate Procedure 52.7(a)(2) further requires that relators file with their petition "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(a)(2). Burke must provide this court with a mandamus record of all of the evidence presented at the hearing before this court may find that the trial court abused its discretion. See In re Athans, 458 S.W.3d 675, 678 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). Here, Burke's mandamus petition and various documents in the record, including the challenged order, indicate that a hearing on the motion for interim attorney's fees was held on January 3, 2017. Although Burke includes a January 10, 2017 transcript regarding her motion for rehearing, she fails to provide a transcript of the January 3, 2017 hearing that resulted in the order challenged in her mandamus petition.
Accordingly, the mandamus petition fails to provide a complete record as required by Rule 52.7(a) and is insufficient to establish that the trial court abused its discretion. See In re Le, 335 S.W.3d at 813, 814 (stating that "[t]his court cannot make a sound decision based on an incomplete picture" and that "[i]n the final analysis, this court cannot and will not find an abuse of discretion on an incomplete record."). For these reasons, we deny the petition for writ of mandamus. Burke's motion for a stay of the underlying proceedings pending our review is dismissed as moot.
PER CURIAM Panel consists of Justices Keyes, Bland, and Huddle