In Re: Howard Holland v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 10, 2023
• Docket: 05-23-00342-CV
• Status: Published

Opinion

DENIED and Opinion Filed May 10, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00342-CV

IN RE HOWARD HOLLAND, Relator

Original Proceeding from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 29317D-422

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Garcia In his petition for writ of mandamus, relator asks us to compel the trial court

to rule on an application for a writ of habeas corpus that he alleges he filed on May

26, 2022.

To obtain mandamus relief compelling the trial court to rule on a motion, a

relator must show (1) the trial court had a legal duty to rule on the motion, (2) the

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.). It is relator’s burden to provide a record sufficient to

establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding); TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1). A 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).

Rule 52.3(k)(1)(A) requires a 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 a relator to file with his 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).

Here, relator filed with his petition an unsworn declaration wherein he

provided his identifying information and then stated: “I declare under penalty of

perjury that the foregoing is true and correct.” It is not clear whether relator included

this declaration in order to swear to documents included in his mandamus record. To

the extent he did, we conclude his unsworn declaration is insufficient to meet the

requirements of rule 52.3(k)(1)(A) and 52.7(1)(a). See In re Butler, 270 S.W.3d 757,

759 (Tex. App.—Dallas 2008, no pet.) (discussing requirements of affidavits filed

in support of a petition for writ of mandamus); see also TEX. CIV. PRAC. & REM.

CODE ANN. § 132.001 (setting out requirements for unsworn declarations); In re

Hamilton, No. 05-19-01458-CV, 2020 WL 64679, at *1 (Tex. App.—Dallas January

7 2020, orig. proceeding) (mem. op.) (acknowledging unsworn declarations may

–2– substitute for affidavits in original petitions seeking a petition for writ of mandamus

if they meet the requirements of section 132.001).

Relator’s unsworn declaration included no particular statement wherein he

declared under penalty of perjury that any document included in his appendix or

record was a true and correct copy of the original.

We conclude that relator has failed to meet his burden to provide a sufficient

record. Accordingly, we deny the petition for writ of mandamus.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

230342F.P05

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