In re Velma Barber, Relator

Justice Baker filed a dissenting opinion, in which Justice Spector joined.

This case involves an original mandamus proceeding. Therefore, mandamus standards of review should apply. Admittedly, under the facts of this case, to deny mandamus relief to the relator leads to a harsh result at this time. But here the Court rewrites existing precedent by the Court of Criminal Appeals, ignores conflicting evidence in the record, and circumvents well-settled mandamus law to reach the result it desires. In my view, the record, existing precedent and mandamus standards lead to the conclusion that mandamus relief is inappropriate. Accordingly, I respectfully dissent.

Mandamus is an extraordinary remedy available only in limited circumstances. See Canadian Helicopters, Ltd. v. Wittig , 876 S.W.2d 304, 305 (Tex. 1994); Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1994). A court should issue mandamus only to correct a clear abuse of discretion or the violation of a legal duty when there is no other adequate remedy at law. See Mitchell Energy Corp. v. Ashworth , 943 S.W.2d 436, 437 (Tex. 1997); Canadian Helicopters, 876 S.W.2d at 305.

The test for abuse of discretion is not whether, in the reviewing court's opinion, the facts present a proper case for the trial court's action. See Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238, 241 (Tex. 1985). Rather, the question is whether the trial court acted without reference to any guiding rules or principles. See Downer, 701 S.W.2d at 241-42. To determine whether there is an abuse of discretion, we review the entire record. See Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 355 (Tex. 1996). Our focus remains on the trial court's order regardless of the court of appeals' decision. See Johnson v. Fourth Court of Appeals , 700 S.W.2d 916, 918 (Tex. 1985). The party challenging the trial court's decision must establish that the facts and law permit the trial court to make but one decision. See Johnson , 700 S.W.2d at 917.

With respect to resolving factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for the trial court's. See Walker , 827 S.W.2d at 839; Flores v. Fourth Court of Appeals , 777 S.W.2d 38, 41-42 (Tex. 1989). The reviewing court must defer to the trial court's resolution of factual matters and may not set aside the trial court's finding unless the record makes it clear that the trial court could reach only one decision. See Walker , 827 S.W.2d at 839-40. The reviewing court may not issue mandamus for an abuse of discretion merely because it disagrees with the trial court's decision if that decision was within the trial court's discretionary authority. See Beaumont Bank N.A. v. Buller , 806 S.W.2d 223, 226 (Tex. 1991). Moreover, an appellate court may not reconcile disputed factual matters in a mandamus proceeding. See Hooks v. Fourth Court of Appeals , 808 S.W.2d 56, 60 (Tex. 1991). An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence reasonably supports the trial court's decision. See IKB Indus. Ltd. v. Pro-Line Corp ., 938 S.W.2d 440, 445 (Tex. 1997); Davis v. Huey , 571 S.W.2d 859, 862 (Tex. 1978).

A trial court can grant a motion for new trial only by a signed written order. See Tex. R. Civ. P. 329b(c). Our rules do not provide for a specific signing method. Our sister court, the Court of Criminal Appeals, has held that a signature may be affixed in different ways, including by a facsimile stamp. See Paulus v. State , 633 S.W.2d 827, 849-50 (Tex. Crim. App. 1981). The signature may be made not only by the signer personally, but by someone the signer duly authorizes. See Stork v. State , 23 S.W.2d 733, 735 (Tex. Crim. App. 1929). The officer's rubber stamp signature is as valid as a signature written longhand, provided that in each case, the facts must show that the officer himself affixed his name to the document, or the signature by written stamp was affixed under the officer's immediate authority and direction and in his presence. See Stork , 23 S.W.2d at 735.

I disagree with the Court's writing in this case for two reasons. First, although acknowledging Stork's requirement that another person can affix the facsimile stamp under the judge's immediate authority, direction and in his presence , the Court writes out the "in his presence" requirement and holds that an order is validly signed merely when a judge directs another person under the judge's immediate authority to affix the judge's signature using a rubber stamp. Second, after having written out the "in his presence" requirement, the Court concludes that the evidence is undisputed that the court coordinator had the trial judge's authority to place a stamped signature on the order in question here. This conclusion permits the Court to conclude "as a matter of law" that the trial court abused its discretion in finding that the agreed order was not properly signed.

The Court recognizes that after reviewing the entire record, "it is not clear that the signature was affixed in the trial court's presence." ______S.W.2d at _______. Nevertheless, to circumvent Stork , the Court holds that it is unrealistic to require the judge's actual physical presence where another person affixes a facsimile signature. ______S.W.2d at ______. The Court then offers a number of reasons why, in its view, it can dispense with requiring actual physical presence when the signature is affixed. Based on these reasons, the Court holds that requiring only the judge's immediate authority and direction provides sufficient safeguards. I disagree with the Court's conclusion . Stork's tripartite requirement of immediate authority, direction and presence serves salutary purposes. First, if Stork had been followed by the trial judge in this case, we would not have had this mandamus in the first place. Second, the tripartite requirement avoids the possibility of inadvertent stamping of orders, judgments, and other documents that may not in actuality have the trial judge's approval. Third, and most importantly, the tripartite requirement prevents others from signing orders that are actually contrary to the trial court's decision.

In addition, the Court improperly ignores the conflicting evidence in the record in concluding that the trial court abused its discretion in finding that the agreed order was not properly signed. The court of appeals' opinion articulates how unclear the record is on this issue:

Judge Aparicio was faced with a number of troubling inconsistencies, and our decision turns on this fact. First, no signed copy of the order appeared in the record. Second, record of the court's signing the order was not made in the court's minutes. Third, the sole "signed" copy was produced from the relator's files very late in the proceedings. Fourth, the Court Administrator signed contradictory and inconsistent affidavits regarding her application of Judge Salinas's signature stamp to the order she gave relator. The trial court was therefore confronted with a number of factual determinations in making its ruling. We are not free to substitute our judgment for that of the trial court unless the trial court could reasonably have reached only one conclusion.

In Re Barber , 960 S.W.2d 310, 313 (Tex. App.--Corpus Christi 1997, orig. proceeding). I conclude, as did the court of appeals, that the trial court was not, as a matter of law, compelled to find that Judge Salinas's signature had properly attached to the order. This Court, as well as the courts of appeals, must not substitute its judgment for the trial court's. See Walker , 827 S.W.2d at 839. More importantly, we may not reconcile disputed factual matters in a mandamus proceeding. See Hooks , 808 S.W.2d at 60. Here, the evidence conflicts. Because there is some evidence that reasonably supports the trial court's decision, there is no abuse of discretion. See IKB Indus. Ltd ., 938 S.W.2d at 445. It is not clear from this record that the trial court could have reached only one decision and accordingly, we may not set aside the trial court's finding. See Walker , 827 S.W.2d at 839-40.

By changing existing precedent, ignoring evidentiary conflicts in the record, and failing to properly apply mandamus standards, the court inappropriately grants mandamus relief here. Because I think the court of appeals was correct in its disposition of the relator's mandamus, I dissent from the Court's decision today.

James A. Baker,

Justice

OPINION DELIVERED: November 12, 1998