IN RE: MV TRANSPORTATION (2026)

CONCURRING OPINION

I join the Court's order denying the petition for writ of mandamus. I write separately because I am disappointed by the conduct reflected in this proceeding. I see the conduct of both sides. I see the selective presentation of facts. I see the accusations.¹ I see the complaints regarding the burden of responding. What I do not see is the level of professionalism that the Texas Disciplinary Rules of Professional Conduct demand and that is expected from attorneys practicing before a court.

Begin with the record. A relator bears the burden to furnish a record sufficient to establish its entitlement to mandamus relief, and we may deny a petition on an inadequate record alone. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Christus Santa Rosa Health Care Corp., No. 04-26-00106-CV, 2026 WL 457037, at *1 (Tex. App.—San Antonio Feb. 18, 2026, orig. proceeding) (mem. op.) (per curiam). The record must include a certified or sworn copy of “every document that is material to the relator's claim for relief,” and a transcript of “any relevant testimony” or “a statement that no testimony was adduced in connection with the matter complained.” TEX. R. APP. P. 52.7(a); In re CG Searcy, LLC, 687 S.W.3d 725, 726 (Tex. 2024) (orig. proceeding) (per curiam). Relators' mandamus record consists largely of their own motions and the orders they challenge. The orders recite that the trial court considered the parties' responses, but the record omits those responses. It omits the transcript of each relevant hearing. And it omits two orders signed the day before relators filed their petition: one denying relators' motion to compel, the other denying their motion to strike the real party in interest's expert. The petition never mentions those orders, even though it relies on the disputes they resolved to justify the stay of trial relators seek. The real party in interest supplied what was missing.

The petition's central theme is that the trial court treated two late expert designations disparately, allowing the real party in interest's and striking relators'. The record does not support that framing. The order permitting the real party in interest's designation was signed by Judge Nicole Garza on July 21, 2026, after a hearing on a motion for leave to which relators filed no response and at which they did not appear. The order striking relators' expert was signed by Judge Angelica Jimenez on September 28, 2026, after a contested hearing on a motion to strike a designation that, according to the real party in interest, relators made after discovery closed, without seeking leave, and without serving a report. The petition acknowledges the real party in interest's position that the designation was untimely. It nowhere discloses that relators filed no response to her motion for leave, did not appear at the hearing on it, and never sought leave of their own.

Diamond Hydraulics, Inc. v. GAC Equipment, LLC, 731 S.W.3d 901 (Tex. 2026), the authority on which relators principally rely, shows why those omissions matter. The supreme court held there that a trial court abused its discretion by “disparate treatment of the two late designations.” Id. at 906–07. But it reached that holding on a record showing that the party seeking relief had promptly notified its opponent, sought to offer a substitute expert, and proposed limits on the new testimony to reduce prejudice. Id. at 906. “This might've been a harder case,” the court explained, “had [the party] chosen the path of passivity,” because “a party who doesn't try to minimize prejudice to the other side, or who fails to make good-faith efforts to secure its witness's testimony, will not have demonstrated good cause for a substitution.” Id. Relators quoted the court's remark that it had “searched the record in vain for a good explanation as to why sauce for the goose couldn't have been sauce for the gander.” Id. at 906–07. They did not mention the passages that make the complaining party's diligence the pivot of the analysis.

Candor to the tribunal requires more. See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.03(a)(1), reprinted in TEX. GOV'T CODE, tit. 2, subtit. G, app. A (prohibiting a knowing false statement of material fact or law to a tribunal). The duty of honesty and candor a lawyer owes an appellate court “includes fairly portraying the record on appeal.” Schlafly v. Schlafly, 33 S.W.3d 863, 873 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The Standards for Appellate Conduct say the same thing specifically for appellate practice: counsel “should not misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities,” and counsel “will advise the Court of controlling legal authorities, including those adverse to their position.” STANDARDS FOR APPELLATE CONDUCT, Lawyers' Duties to the Court ¶¶ 3, 4.

Candor is not the only obligation at stake. The Preamble to the Texas Disciplinary Rules of Professional Conduct recognizes that a lawyer is both an advocate and “an officer of the legal system” with “special responsibility for the quality of justice.” TEX. DISCIPLINARY RULES PROF'L CONDUCT, Preamble: A Lawyer's Responsibilities ¶ 1. Rule 3.02 forbids a lawyer from taking a position that unreasonably increases the costs or other burdens of litigation. Id. R. 3.02. These obligations run to clients, to the courts before which counsel appear, and to one another as members of the bar. In mandamus proceedings, we may sanction a party or attorney who is not acting in good faith, as indicated by “grossly misstating or omitting an obviously important and material fact in the petition or response” or by “filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.” TEX. R. APP. P. 52.11(c), (d); see In re Lerma, 144 S.W.3d 21, 27 (Tex. App.—El Paso 2004, orig. proceeding). No party has moved for sanctions, and I express no view on whether sanctions would be appropriate.

I appreciate that the underlying trial is imminent and that counsel face significant demands on their time. But professional obligations do not diminish as litigation pressures increase. To the contrary, professionalism is tested most when the stakes are highest. Eve-of-trial disputes over expert testimony are nothing new, and mandamus has a place in resolving them. See, e.g., In re Red Bird Trail Apartments, 694 S.W.3d 230, 230–31 (Tex. 2024) (orig. proceeding) (Young, J., concurring in denial of petition for writ of mandamus) (new expert evidence disclosed after the jury was selected); In re Warwick Constr., Inc., 734 S.W.3d 414, 415 (Tex. 2026) (orig. proceeding) (Young, J., dissenting from denial of petition for writ of mandamus) (discovery ruling challenged on the eve of a Bexar County trial); see also Diamond Hydraulics, 731 S.W.3d at 904 (recounting the denial of an eve-of-trial mandamus petition, with the exclusion of the expert reversed on appeal after trial). But such petitions present a distinct challenge. They ask appellate judges to act within days, often on a record assembled by one side and before the other side has been heard, and to decide whether to displace a trial setting the trial court has managed for years. If we deny relief, the trial proceeds and the petition may become moot. If we stay the trial on a one-sided record, we risk acting too quickly and rewarding gamesmanship. See STANDARDS FOR APPELLATE CONDUCT, The Court's Relationship with Counsel ¶ 2 (“The court will take special care not to reward departures from the record.”); cf. Warwick, 734 S.W.3d at 415 (“[T]he Court has no obligation to prevent mootness for the sake of preventing mootness; otherwise, anyone could stop a trial just by filing a mandamus petition.”). We can do this work only if the record and the petition's verified account of it can be trusted.

I am not blind to the impassioned tactics of counsel on both sides of this matter. I expect better. The administration of justice depends upon candor to the tribunal, professionalism toward opposing counsel, and respect for the judicial process. With these observations, I concur.

FOOTNOTES

1.   The response, for its part, describes relators' counsel's correspondence as “obvious AI assisted email gibberish,” suggests that counsel claims “the powers of premonition,” and declares that relators' conduct “is not the practice of law” and amounts to “a coordinated campaign to avoid a trial.” It complains that the real party in interest “has had to waste her counsel's time” responding. Frustration with an opponent's tactics does not license personal attacks or unfounded accusations of impropriety. See STANDARDS FOR APPELLATE CONDUCT, Lawyers' Duties to Lawyers ¶¶ 5, 6, available at https://www.txcourts.gov/media/1437423/standards-for-appellate-conduct.pdf.

PER CURIAM