in Re Victor J. Black

• Court: Court of Appeals of Texas
• Decided: July 1, 2021
• Docket: 05-21-00385-CV
• Status: Published

Opinion

DENIED and Opinion Filed July 1, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00385-CV

IN RE VICTOR J. BLACK, Relator

Original Proceeding from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F09-62734-Y

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Myers In this original proceeding, Victor Black has filed a petition for a writ of

mandamus to compel the trial court to rule on a motion to release medical records

filed as an exhibit in his trial and to compel the court reporter to respond to relator’s

inquiry about the cost to purchase a copy of the medical records exhibit. We deny

relief.

We have the power to issue writs of mandamus to enforce our own

jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a). We also have jurisdiction to

issue writs of mandamus more broadly against district and county judges within our

geographic jurisdiction. See id. at § 22.221(b). Relator has not shown that a writ of

mandamus against the court reporter is necessary in this case to enforce our jurisdiction. Accordingly, we have no basis for asserting jurisdiction over the court

reporter. See In re Strickhausen, 994 S.W.2d 936, 936 (Tex. App.—Houston [1st

Dist.] 1999, orig. proceeding) (per curiam); see also In re Williams, No. 05-20-

00255-CV, 2020 WL 967349, at *1 (Tex. App.—Dallas Feb. 28, 2020, orig.

proceeding) (mem. op.) (denying petition for writ of mandamus against court

reporter).

Regarding relator’s request for relief against the trial court, 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 properly certified. He provides an unsworn

declaration stating under penalty of perjury that “the foregoing is true and correct.”

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

–2– 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 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.

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).

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 any record. Instead, he states that the

documents relevant to the record are filed with the trial court and the court reporter.

To obtain mandamus relief, 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). Without a record, relator

–3– cannot show he filed the motion, requested a ruling, and the trial court failed or

refused to act on the motion within a reasonable time. See Prado, 522 S.W.3d at 2;

Molina, 94 S.W.3d at 886.

Because relator’s petition is not certified and is not accompanied by a

supporting record showing he is entitled to mandamus relief, we conclude relator

has not shown he is entitled to the relief he seeks. Accordingly, we deny relief. See

TEX. R. APP. P. 52.8(a).

/Lana Myers// 210385f.p05 LANA MYERS JUSTICE

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