In Re: Karla D. Stover and Robert J.S. Thompson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 24, 2023
• Docket: 05-23-00480-CV
• Status: Published

Opinion

DENIED and Opinion Filed May 24, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00480-CV

IN RE KARLA D. STOVER AND ROBERT J.S. THOMPSON, Relators

Original Proceeding from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-07079

MEMORANDUM OPINION Before Justices Pedersen, III, Nowell, and Miskel Opinion by Justice Nowell Before the Court is relators’ May 19, 2023 petition for writ of mandamus

wherein relators seek relief from the trial court’s denial of their motion to stay.

Entitlement to mandamus relief requires relators to demonstrate that the trial

court clearly abused its discretion and that they lack an adequate remedy by appeal.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). Relators bear the burden of providing the Court with a sufficient record

to show they are entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992) (orig. proceeding). Because the parties in an original proceeding assemble

their own record, this Court strictly enforces the requirements of rule 52 to ensure the integrity of the mandamus record. In re Vasquez, No. 05-15-00592-CV, 2015

WL 2375504, at *1 (Tex. App.—Dallas May 18, 2015, orig. proceeding) (mem. op.).

As a threshold matter, we note that relators did not include in their appendix

or record a written order denying their motion to stay. Instead, relators included what

appears to be an email from the trial court administrator stating that the judge had

denied the motion to stay. We question whether such an email constitutes a sufficient

trial court ruling subject to mandamus review. See, e.g., In re Cokinos, No. 05-16-

01331-CV, 2016 WL 7163968, at *1 (Tex. App.—Dallas Nov. 16, 2016, orig.

proceeding) (mem. op.) (discussing requirement to include a clear, specific, and

enforceable order that is adequately shown by the record). However, we need not

decide that question today because relators’ record does not otherwise comply with

the requirements of Texas Rule of Appellate Procedure 52. See TEX. R. APP. P.

52.3(k)(1)(A), 52.7(a)(1), 52.7(a)(2).

For example, the documents contained in relators’ appendix and record are

neither certified nor sworn copies. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).

Certified copies may be ordered from the district clerk. See In re Hamilton, No. 05-

19-01458-CV, 2020 WL 64679, at *1 (Tex. App.—Dallas Jan. 7, 2020, orig.

proceeding) (mem. op.). Documents become sworn copies when they are attached

to an affidavit or to an unsworn declaration stating under penalty of perjury that the

person making the affidavit or unsworn declaration has personal knowledge that the

copies of the documents attached are correct copies of the originals. See id.; see also

–2– TEX. CIV. PRAC. & REM. CODE ANN. § 132.001. Relators included in their petition a

certification from their attorney that does not invoke the penalty of perjury stating

that “the petition is accompanied by an Appendix containing certified copies of

every document material to the claim for relief.” The documents in the appendix and

record, however, are not actually certified by the district clerk. And we conclude that

the attorney’s certification is insufficient to make the documents sworn copies. See

In re La Energia Nortena, LLC, No. 05-22-01272-CV, 2023 WL 3579442, at *1

(Tex. App.—Dallas May 22, 2023, orig. proceeding) (mem. op.).

Additionally, relators’ petition shows that the trial court held a hearing on

relators’ motion to stay. Relators’ petition included a statement that “the petition is

accompanied by an Appendix containing . . . the properly authenticated transcript of

any relevant testimony from any underlying proceeding, including any exhibits

offered into evidence.” Relators, however, did not include a properly authenticated

transcript of any relevant testimony. And we conclude that the foregoing statement

fails to otherwise satisfy Rule 52.7(a)(2). See TEX. R. APP. P. 52.7(a)(2). As a result,

we conclude that relators have failed to meet their burden to provide a sufficient

record.

–3– Accordingly, we deny relators’ petition for writ of mandamus. We also deny

relators’ motion for emergency stay of proceedings as moot.

/Erin A. Nowell// 230480f.p05 ERIN A. NOWELL JUSTICE

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