Opinion
No. 05-20-00462-CV
05-20-2020
IN RE DAVID GARRETT, Relator
Original Proceeding from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F16-54148-W
MEMORANDUM OPINION
Before Justices Whitehill, Pedersen III, and Carlyle
Opinion by Justice Whitehill
In this original proceeding, David Garrett petitions the Court for a writ of mandamus to compel the trial court to enforce an order it entered on June 14, 2016 requiring the State to return or reimburse money garnished from relator's inmate trust account. Relator alleges the State resumed garnishing his trust account in May 2019.
To satisfy the rules of appellate procedure, relator must certify in his petition 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." TEX. R. APP. P. 52.3(j). The certification must 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). Relator's petition does not contain a certification, and thus does not comply with the certification requirement of rule 52.3(j). See id.
Furthermore, as the party seeking relief, relator has the burden of providing the Court with a sufficient record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rule 52.3(k)(1)(A) requires the 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). Additionally, 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).
Documents become sworn copies when they are attached to an affidavit or to an unsworn declaration conforming to section 132.001 of the Texas Government Code. See TEX. GOV'T CODE ANN. § 132.001; Butler, 270 S.W.3d at 759; In re Taylor, 28 S.W.3d 240, 245, (Tex. App.—Waco 2000, orig. proceeding), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). The affidavit or unsworn declaration must affirmatively show it is based on relator's personal knowledge. See Butler, 270 S.W.3d at 759. The affidavit or unsworn declaration is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them. See id. An affidavit or unsworn declaration would comply with the rule if it stated, under penalty of perjury, that the affiant has personal knowledge that the copies of the documents in the appendix are true and correct copies of the originals. See id.
The only documents relator has attached to his petition are copies of the Court's opinion and order dismissing his previous mandamus petition. There are no certified or sworn documents showing the trial court has issued an order, that the State is disobeying the order, or that the trial court has refused to enforce the order. Without a properly authenticated appendix containing certified or sworn copies of documents showing he is entitled to relief, relator has not met his burden. See Butler, 270 S.W.3d at 759.
Having concluded that relator's petition does not meet the requirements in the rules of appellate procedure for consideration of mandamus relief, we deny relator's petition. See id. at 758-59.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 200462F.P05