in Re Carl Long ( 2007 )

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