in Re Natural Gas Consulting & Measurement, LLC and J.P. Davis, Relators ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00309-CV
IN RE NATURAL GAS CONSULTING & MEASUREMENT, LLC AND J. P. DAVIS,
RELATORS
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
September 5, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Natural Gas Consulting & Measurement, LLC, and J.P. Davis (Natural Gas)
petitioned for a writ of mandamus. We deny it because the petitioner failed to comply
with applicable rules of appellate procedure.
Per Texas Rule of Appellate Procedure 52.3(k)(1)(A), the appendix to a petition for
‘writ of mandamus must contain “a certified or sworn to copy of any order complained of,
or any other document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A);
see also TEX. R. APP. P. 52.7(a)(1) (obligating the relator to file with the petition “a certified
or sworn to 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)(2) (obligating the relator
to file “a properly authenticated transcript of any relevant testimony . . . including any
exhibits offered in evidence”). Accompanying the appendix at bar is a “declaration”
wherein counsel for the petitioner declared that: “Each of the documents included in the
attached appendix and mandamus record, both sealed and unsealed, is a true and correct
copy of the document identified, as those documents exist in our files.” (Emphasis
added). Such italicized language conditions the accuracy and authenticity of the
documents to which counsel alludes. In effect, the declarant is not saying, under oath
based on personal knowledge, that the documents are true and correct copies of the
originals but rather that they are true and correct copies of what was found in legal
counsel’s own files. This distinction is important.
In a direct appeal, the clerk’s and reporter’s records serve as the appellate record
upon which we act. TEX. R. APP. P. 34.1 (stating that the appellate record consists of the
clerk’s record and, if necessary for the appeal, the reporter’s record). Those responsible
for preparing, certifying, and filing their respective portions of the appellate record are the
trial court clerk, and court reporter. TEX. R. APP. P. 35.3(a), (b). In an original proceeding,
there is no “appellate record” per se but rather an appendix containing the information
pertinent to the dispute. Nor do either the trial court clerk or court reporter have any duty
to provide us with that relevant data. The burden lies with the relator (i.e., Natural Gas
here) to present us with a record sufficient to illustrate its entitlement to relief. In re Rose,
No. 04-18-00054-CV, 2018 Tex. App. LEXIS 1038, at *2 (Tex. App.—San Antonio Feb.
7, 2018, orig. proceeding) (per curiam) (mem. op.); In re Fox, 141 S.W.3d 795, 796-97
(Tex. App.—Amarillo 2004, orig. proceeding). In other words, the appendix and the items
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therein serve as the record upon which we act, and the relator takes the place of the trial
court clerk and reporter in providing us that record.
Just as a clerk and reporter are to certify to the accuracy and authenticity of the
record they supply us, so too is the relator. Thus, the copy of the 1) order or document
complained of and 2) hearing transcript and exhibits admitted must depict the actual order
or document issued by the trial court and the actual content of the hearing. Without true
and correct copies of orders or hearing transcripts depicting what the trial court actually
ordered or heard, we can hardly assess whether it abused its discretion in a way requiring
our intervention. See In re Approximately $61,083.00, No. 14-13-01059-CV, 2014 Tex.
App. LEXIS 2421, at *7 (Tex. App.—Houston [14th Dist.] Mar. 4, 2014, orig. proceeding)
(per curiam) (mem. op.) (stating that “[w]ithout a complete picture of what facts were
before the trial court and how the court applied the law to those facts in reaching its
decision, this Court does not have a basis on which to conclude that the trial court abused
its discretion”). And, the burden lies with the relator to establish the authenticity of those
items. A relator or someone on its behalf simply declaring that the items are nothing more
than true copies of matters found in their own files does not establish the authenticity of
what the trial court ruled. Nor does it establish that the evidence within the transcript is
the evidence heard by the court prior to ruling. Again, orders, documents, and transcripts
must be either certified or sworn to copies of the originals. See In re Butler, 270 S.W.3d
757, 758-59 (Tex. App.—Dallas 2008, orig. proceeding) (holding that an affiant attesting
that “‘[t]he documents contained in the attached Record and attached Appendix to the
Relators’ Petition for Writ of Mandamus are to my knowledge true and correct copies of
the original documents’“ was insufficient to satisfy the obligation to provide sworn copies).
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Natural Gas has not carried its burden to provide us with a record sufficient to show
its entitlement to relief given the wording within the “declaration.” See In re Taylor, No.
07-14-00010-CV, 2014 Tex. App. LEXIS 2381, at *3 (Tex. App.—Amarillo Feb. 28, 2014,
orig. proceeding) (mem. op.) (holding that the relator failed to comply with Rule
52.3(k)(1)(A) where he “include[d] a file-stamped copy of the order denying his appellate
counsel’s motion to withdraw, but [the] order [was] neither certified nor sworn to by
Taylor”); In re Fox, 141 S.W.3d at 796-97 (holding that because the document was neither
certified nor sworn to, the relator failed to comply with Rule 52.3); see also In re
Approximately $61,083.00, 2014 Tex. App. LEXIS 2421, at *5-6 (holding that “[a]lthough
relator includes a ‘certification’ at the beginning of his appendix in the style of an affidavit,
it lacks the attestation of a notary public or other official as required for a sworn affidavit”
which left the reviewing court with an insufficient record to assess the complaint); In re
Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding) (noting the
relator’s burden to include “a properly authenticated transcript” of any relevant testimony
and exhibits). Thus, we deny, without prejudice, the petition for writ of mandamus filed
by Natural Gas.
Per Curiam
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