Opinion
06-21-00071-CV
08-25-2021
IN RE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, MICHAEL DUNN, AND SMEAD, ANDERSON & DUNN
Date Submitted: August 24, 2021
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Ralph K. Burgess, Justice
Travelers Property Casualty Company of America (Travelers), Michael Dunn, and Smead, Anderson &Dunn (collectively Relators) have petitioned this Court for a writ of mandamus requiring the Honorable Laurine J. Blake to vacate a portion of her order denying Relators' motions to compel and sustaining Real Party in Interest John Goin's assertions of privilege and requiring Judge Blake to enter an order granting Relators' motion to compel production of certain emails and overruling Goin's assertions of privilege as to those emails. Because the documents attached to the mandamus record are not properly sworn, we deny the requested relief.
Rule 52.7(a)(1) of the Texas Rules of Appellate Procedure requires a relator to file with its petition for a writ of mandamus "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding[.]" TEX. R. APP. P. 52.7(a)(1). "'Documents that are attached to a properly prepared affidavit are sworn copies,' while documents attached to an improperly prepared affidavit are not." In re Porter, No. 06-21-00054-CV, 2021 WL 2425251, at *1 (Tex. App.-Texarkana June 15, 2021, orig. proceeding) (mem. op.) (quoting In re Henderson, No. 06-15-00034-CR, 2015 WL 13522812, at *1 (Tex. App.-Texarkana Mar. 10, 2015, orig. proceeding) (mem. op.) (citing In re Butler, 270 S.W.3d 757, 759 (Tex. App.-Dallas 2008, orig. proceeding))).
One of Travelers' attorneys signed an affidavit that stated that he was one of the attorneys for Travelers and that "[a]ll of the documents and transcripts included in [the] three-volume record [were] true and correct copies of the originals." A similar affidavit was attached to a two- volume set of confidential documents, which we assume was intended to be included in the mandamus record. Those affidavits fail to state that all of the documents attached to the mandamus record were filed in the underlying proceeding. See id.; In re Gilead Scis., Inc., No. 06-21-00027-CV, 2021 WL 1537482, at *2 (Tex. App.-Texarkana Apr. 20, 2021, orig. proceeding) (mem. op.); In re Long, 607 S.W.3d 443, 445 (Tex. App.-Texarkana 2020, orig. proceeding). A brief review of the mandamus record revealed that at least some of the documents, including Travelers' motion to compel related to the complained-of order, did not contain file marks by the district clerk or any other indication that the documents were filed in the underlying proceeding. Consequently, we cannot ascertain which documents in the mandamus record were actually filed in the underlying proceeding.
"'Because the record in a mandamus proceeding is assembled by the parties,' we must 'strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the mandamus record.'" In re Porter, 2021 WL 2425251, at *1 (quoting In re Morehead, No. 06-21-00025-CV, 2021 WL 1652064, at *2 (Tex. App.-Texarkana Apr. 28, 2021, orig. proceeding) (mem. op.) (quoting In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.-Dallas Mar. 22, 2019, orig. proceeding) (mem. op.))).
Since Relators did not comply with the Texas Rules of Appellate Procedure, we deny the petition for a writ of mandamus.