Opinion
06-21-00057-CV
10-08-2021
IN RE LEE EDWARD THOMAS, ET AL.
Date Submitted: October 7, 2021
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
Lee Edward Thomas, Johnny Lee McCoy, Willie James McCoy, Johnny Morse Gill, and Charles Ear McCoy, Relators, have petitioned this Court for a writ of mandamus requiring the Honorable Brad Morin, 71st Judicial District Judge in Harrison County, to enter an order granting Relators' plea to the jurisdiction, nullifying all previous orders entered in the case below, releasing the funds of Collier's Chapel Baptist Church, and removing all restrictions placed on Relators. Because the documents attached to the mandamus record are not properly sworn or authenticated, we deny the requested relief.
Rule 52.7(a)(1) of the Texas Rules of Appellate Procedure requires a relator, when filing a petition for a writ of mandamus, to file with it "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))). "The affidavit 'must affirmatively show it is based on the personal knowledge of the affiant'; the affidavit 'is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them.'" 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 at 759).
Relators' counsel signed a "RULE 52.3(j) and 52.7(a)(2) CERTIFICATION" that stated, inter alia, "I hereby certify . . . that all documents in the Mandamus Records and Appendix are true and correct copies." He also signed an unsworn declaration in which he stated that he was the attorney for Relators and declared, "I have read the foregoing Writ for Mandamus in the pending matter and the facts stated therein are within my personal knowledge and are true and correct and that [sic] the documents attached hereto are true and exact copies of those submitted in the appellate court." Relators' counsel also submitted a verification attached to their supplement to the petition for a writ of mandamus in which he averred, "[A]ll the facts and allegations contained in said Petition for Writ for Mandamus are true and correct based on my Personal Knowledge and . . . all Attachments/Exhibits contained in the Appendix of Relators Petition for Writ of Mandamus under Cause Number 06-21-00057-CV are True and Exact Copies of said documents filed in the underlying proceeding." The "RULE 52.3(j) and 52.7(a)(2) CERTIFICATION," the unsworn declaration, and the verification do not affirmatively show that counsel's statements that the documents are true and correct copies and that they were filed in the underlying proceeding are based on his personal knowledge. Consequently, they do not meet the requirements of Rule 52.7(a)(1).
"'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 *1 (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.))). "The failure to file a properly authenticated and adequate record justifies denying [a] relator's petition." In re Bookman, Nos. 05-21-00492-CV, 05-21-00493-CV, 05-21-00494-CV, 05-21-00495-CV, 2021 WL 3828461, at *1 (Tex. App-Dallas Aug. 27, 2021, orig. proceeding) (mem. op.) (citing In re Butler, 270 S.W.3d at 759).
Since Relators did not comply with the Texas Rules of Appellate Procedure, we deny the petition for a writ of mandamus.