in Re: Erik Bowen

• Court: Court of Appeals of Texas
• Decided: February 10, 2015
• Docket: 05-15-00137-CV
• Status: Published

Opinion

DENIED and Opinion Filed February 10, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00137-CV No. 05-15-00139-CV No. 05-15-00140-CV

IN RE ERIK BOWEN, Relator

Original Proceeding from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-80668-09, 401-80666-09, 401-80667-09

MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Whitehill Opinion by Justice Evans Relator filed this petition for writ of mandamus complaining the trial court has failed to

rule on his motion for forensic DNA testing. Relator’s petition for writ of mandamus in this case

fails to comply with rule 52 in a number of respects. “Those 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.” In re Le, 335

S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding). Because the record

in a mandamus proceeding is assembled by the parties, see TEX. R. APP. P. 52.3(j), 52.3(k), 52.7,

this Court strictly enforces the authentication requirements of rule 52 of the rules of appellate

procedure to ensure the integrity of the mandamus record. See, e.g., In re Butler, 270 S.W.3d

757, 759 (Tex. App.—Dallas 2008, orig. proceeding) (finding affidavit insufficient to authenticate record because it did not state affiant had “personal knowledge the copy of the order

in the appendix is a correct copy of the original.”).

Relator’s petition for writ of mandamus does not include a certification that the person

filing the petition “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). It does not include an appendix or record in support of the petition. TEX. R. APP. P.

52.3(k)(1)(A); 52.7(a).

Further, the relator’s petition does not demonstrate that the relator has taken any

measures to obtain a ruling on his motion. A court is not required to consider a motion that has

not been properly called to its attention. In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—

Amarillo 2004, orig. proceeding); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston

[1st Dist.] 1994, writ denied). The duty to procure a hearing rests on the moving party, not upon

the trial judge. Bolton's Estate v. Coats, 608 S.W.2d 722, 729 (Tex. Civ. App.—Tyler 1980, writ

ref'd n.r.e.).

Relator’s petition fails to establish a right to mandamus relief. We DENY the petition.

TEX. R. APP. P. 52.8.

/David Evans/ DAVID EVANS JUSTICE

150137F.P05

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