In Re: Robert Lancaster and Alicia Lancaster, Intervenors v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 5, 2023
• Docket: 05-23-00381-CV
• Status: Published

Opinion

DENIED and Opinion Filed May 5, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00381-CV

IN RE ROBERT LANCASTER AND ALICIA LANCASTER, INTERVENORS, Relators

Original Proceeding from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-03861

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Garcia Before the Court is relators’ April 26, 2023 petition for writ of mandamus

wherein relators challenge a memorandum ruling dated April 13, 2023.1

Entitlement to mandamus relief requires relators to show that the trial court

clearly abused its discretion and that relators lack an adequate appellate remedy. In

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

proceeding).

1 Relators contend the trial court was without jurisdiction to set and go forward with the proceedings that took place on April 13, 2023, because our mandate had not yet issued in No. 05-21-01108-CV. We express no opinion on the merits of relators’ petition, but we note that relators do not explain whether § 109.001 of the Texas Family Code may apply. Based on our review, the appendix attached to relators’ petition contains

unredacted sensitive information, including a minor’s birthdate and address, in

violation of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.9.

Accordingly, we strike the petition and its attached appendix.

Moreover, 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 Gonzalez, No. 05-23-00056-CV,

2023 WL 3143425, at *1 (Tex. App.—Dallas April 28, 2023, orig. proceeding)

(mem. op.). Relators were required to file with their petition a certified or sworn

copy of every document material to their claim for relief. See TEX. R. APP. P.

52.7(a)(1); see also TEX. R. APP. P. 52.3(k)(1)(A).

Relators filed their attorney’s unsworn declaration with their petition. An

unsworn declaration must be “subscribed by the person making the declaration as

true under penalty of perjury.” Bonney v. U.S. Bank Nat’l Ass’n, No. 05-15-01057-

CV, 2016 WL 3902607, at *3 (Tex. App.—Dallas, July 14, 2016, no pet.) (mem.

op.). “[T]he inclusion of the phrase ‘under penalty of perjury’ is the key to allowing

an unsworn declaration to replace an affidavit.” Id.; see also In re Butler, 270 S.W.3d

757, 759 (Tex. App.—Dallas 2008, orig. proceeding) (“An affidavit is insufficient

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

them.”).

Here, relators’ attorney declares that she has “reviewed the documents

contained in the mandamus record” and that they “are true and correct copies of the

pleadings, orders, and documents they purported to be, which were filed, submitted,

or received in the trial court proceedings and/or in the appellate proceedings in this

matter.” The attorney declares that the facts stated “in this affidavit are true and

correct and are based upon [her] personal knowledge.” But the attorney’s unsworn

declaration does not invoke the penalty of perjury. Accordingly, we conclude that

relators have failed to meet their burden to provide a sufficient record.

Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

/Dennise Garcia/ DENNISE GARCIA JUSTICE

230381F.P05

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