in Re Bobby Joe Evens

• Court: Court of Appeals of Texas
• Decided: January 7, 2020
• Docket: 05-19-01430-CV
• Status: Published

Opinion

DENIED and Opinion Filed January 7, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01430-CV

IN RE BOBBY JOE EVENS, Relator

Original Proceeding from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-10082

MEMORANDUM OPINION Before Justices Myers, Molberg, and Nowell Opinion by Justice Nowell Bobby Joe Evens has filed a petition for writ of mandamus requesting the Court to compel

the district clerk to inform him whether his bill of review and a discovery motion has been filed

and to compel the trial court to set his bill of review and discovery motion for hearing. We deny

relief.

This Court does not have jurisdiction to issue writs of mandamus against a district clerk

unless it is necessary to enforce our own jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a), (b)

(authorizing court of appeals to issue writs of mandamus against district and county judges within

appellate court’s geographic jurisdiction or against other officials when necessary to enforce

appellate court’s jurisdiction); In re Shugart, 528 S.W.3d 794, 796 (Tex. App.—Texarkana 2017,

orig. proceeding). Relator is not complaining about actions in an appeal pending in this Court and,

therefore, we have no jurisdiction to act against the district clerk. Shugart, 528 S.W.3d at 796. A petition seeking mandamus relief must contain a certification stating that the relator “has

reviewed the petition and concluded that every factual statement in the petition is supported by

competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j). The Court

requires relator’s certification to state substantially what is written in rule 52.3(j). See In re Butler,

270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding). Relator’s petition contains a

declaration stating that he does “declare under the Penalty of Perjury that the foregoing information

is true and correct.” Thus, relator’s petition does not comply with the certification requirement of

rule 52.3(j). See id.

Furthermore, rule 52.3(k)(1)(A) requires the relator to file an appendix with his petition

that contains “a certified or sworn copy of any order complained of, or any other document

showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule 52.7(a)(1) requires the

relator to file with the petition “a certified or sworn copy of every document that is material to the

relator’s claim for relief that was filed in any underlying proceeding.” TEX. R. APP. P. 52.7(a)(1).

Relator has attached copies of documents to his petition, but the documents are not certified

or sworn copies and thus not properly authenticated under the rules of appellate procedure.

Documents become sworn copies when they are attached to an affidavit or to an unsworn

declaration conforming to section 132.001 of the Texas Government Code. See TEX. GOV’T CODE

ANN. § 132.001; Butler, 270 S.W.3d at 759; In re Taylor, 28 S.W.3d 240, 245, (Tex. App.—Waco

2000, orig. proceeding), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex.

2003). The affidavit or unsworn declaration must affirmatively show it is based on relator’s

personal knowledge. See Butler, 270 S.W.3d at 759. The affidavit or unsworn declaration is

insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to

them. See id. An affidavit or unsworn declaration would comply with the rule if it stated, under

–2– penalty of perjury, that the affiant has personal knowledge that the copies of the documents in the

appendix are true and correct copies of the originals. See id.

As the party seeking relief, the relator has the burden of providing the Court with a

sufficient mandamus record to establish his right to mandamus relief. Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Without a properly authenticated appendix

containing certified or sworn copies of documents, relator has not provided a sufficient record to

show his entitlement to mandamus relief. See Butler, 270 S.W.3d at 759; Shugart, 528 S.W.3d at

796.

Having concluded that the Court lacks the power to grant relator relief against the district

clerk and that mandamus relief may not be considered in the absence of a properly authenticated

petition and appendix of supporting documents, we deny relator’s petition. See Butler, 270 S.W.3d

at 758–59; Shugart, 528 S.W.3d at 796.

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

191430F.P05

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