in Re Howard Holland

• Court: Court of Appeals of Texas
• Decided: March 12, 2021
• Docket: 05-21-00045-CV
• Status: Published

Opinion

DENIED and Opinion Filed March 12, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00045-CV

IN RE HOWARD HOLLAND, Relator

On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 31610-422

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Myers In this original proceeding, Howard Holland seeks mandamus relief to

compel the trial court to rule upon a motion to take judicial notice of exhibits

attached to the motion. Relator alleges he filed the motion on November 23, 2020,

wrote letters to the trial court and court coordinator on December 21, 2020

requesting a ruling on the motion, and sent the trial court a second notice regarding

the motion on January 1, 2021. We deny relief.

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); see also In re Hughes, 607 S.W.3d 136, 137 (Tex.

App.—Houston [14th Dist.] orig. proceeding) (dismissing case for deficiencies in

mandamus petition).

Relator’s petition is not certified. Because relator does not certify that he “has

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

supported by competent evidence included in the appendix or record,” or language

substantially similar, the petition does not comply with rule 52.3(j). See TEX. R.

APP. P. 52.3(j); Butler, 270 S.W.3d at 758; Hughes, 607 S.W.3d at 137.

Furthermore, to obtain mandamus relief compelling the trial court to rule on

his motion, relator must show (1) the trial court had a legal duty to rule on the motion,

(2) relator requested a ruling, and (3) the trial court failed or refused to do so within

a reasonable time. In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig.

proceeding) (mem. op.); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio

2003, orig. proceeding) (per curiam). Relator must file with his petition a sufficient

record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833,

837 (Tex. 1992) (orig. proceeding).

To create a sufficient record, rule 52.3(k)(1)(A) requires 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.

–2– 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).

Under these rules, relator’s petition must be supported by documents, such as copies

of the motion and the trial court’s docket sheet, that will show what motion relator

has filed, when the motion was filed, and how relator called the trial court’s attention

to the motion. See Prado, 522 S.W.3d at 2. Relator’s status as an incarcerated

person does not relieve him of the obligation to file a sufficient record. In re Gomez,

602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding).

In this case, relator has not filed a certified or sworn copy of the motion upon

which he seeks a ruling. The motion would be “a document showing the matter

complained of” and a “document that is material to the relator’s claim for relief that

was filed in any underlying proceeding.” See TEX. R. APP. P. 52.3(k)(1)(A),

52.7(a)(1).

Relator has attached to his petition a copy of a cover letter purporting to

transmit the motion and exhibits to the trial court clerk for filing. The cover letter

bears a file stamp dated November 30, 2020. Relator also attached uncertified and

unsworn copies of his December 21, 2020 and January 1, 2021 correspondence.

None of the letters are certified or sworn copies as required to authenticate them

under the rules of appellate procedure. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).

–3– To qualify as sworn copies, relator would need to attach the documents to an

affidavit or an unsworn declaration conforming to section 132.001 of the Texas Civil

Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001;

Butler, 270 S.W.3d at 759; In re Long, 607 S.W.3d 443, 445 (Tex. App.—Texarkana

2020, orig. proceeding); Hughes, 607 S.W.3d at 138 n.2. The affidavit or unsworn

declaration must affirmatively show it is based on relator’s personal knowledge and

must contain direct, unequivocal statements to which perjury could be assigned. See

Butler, 270 S.W.3d at 759; Long, 607 S.W.3d at 445. An affidavit or unsworn

declaration would comply with the rule if it stated, under 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 Butler, 270 S.W.3d at 759.

Relator can satisfy the requirements for an unsworn declaration, and

authenticate his documents as required by rules 52.3(k)(1)(A) and 52.7(a)(1), by

including in his unsworn declaration the language in section 132.001(e):

My name is [first] [middle] [last], my date of birth is [date], and my inmate identifying number, if any, is [inmate number]. I am presently incarcerated in [Corrections unit name] in [city], [county], [state], [zip code]. I declare under penalty of perjury that the foregoing is true and correct. Executed on the ___ day of [month] [year]. [signature] Declarant.

See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(e).

–4– Because relator has not filed an appendix of supporting documents that are

either certified copies or sworn copies verified with an affidavit or unsworn

declaration, relator has not met his burden to provide an appendix of supporting

documents to show he is entitled to mandamus relief. See Butler, 270 S.W.3d at

759; Long, 607 S.W.3d at 446.

Moreover, even if relator had filed authenticated documents showing he

properly filed the motion and requested a hearing, he has not shown the trial court

has had a reasonable opportunity to rule upon the motion. The amount of time that

would be considered reasonable to rule upon a motion is not subject to exact

formulation and depends on the circumstances of the case. See In re Blakeney, 254

S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding). In considering

whether the trial court has had a reasonable opportunity to rule upon a pending

motion, we may consider a variety of factors including the trial court’s actual

knowledge of the motion, whether it has overtly refused to rule upon the motion, the

state of the trial court’s docket, the existence of other pending judicial and

administrative matters that might be more pressing than the motion, and the trial

court’s inherent authority to control its own docket. In re Chavez, 62 S.W.3d 225,

228–29 (Tex. App.—Amarillo 2001, orig. proceeding).

Because relator’s petition is not certified, is not accompanied by a supporting

record showing he is entitled to mandamus relief, and there is no showing that the

trial court has had a reasonable opportunity to consider the motion, we deny relief

–5– without prejudice to relator refiling the petition. If the trial court has not ruled upon

the motion after a reasonable time has passed, relator may refile the petition (1)

properly certified as required by rule 52.3(j), and (2) accompanied by a record

authenticated with a sworn declaration, as discussed above, that shows relator filed

his motion with the trial court and requested a ruling from the trial court aside from

simply filing the motion. See Butler, 270 S.W.3d at 758–59; Molina, 94 S.W.3d at

886.

/Lana Myers/ LANA MYERS JUSTICE 210045F.P05

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