in Re D.S.W., a Child ( 2022 )

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed
October 11, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00700-CV
IN RE D.S.W., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
247th District Court
Harris County, Texas
Trial Court Cause No. 2018-88778
MEMORANDUM OPINION
Relator D.S.W filed a petition for writ of mandamus in this court. See Tex.
Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks
this court to compel the Honorable Janice Berg, presiding judge of the 247th District
Court of Harris County, to vacate her August 1, 2019 order granting a default
judgment against relator or, alternatively, rule on relator’s bill of review that he
alleges was filed in May 2021.
We sent relator notice that his petition did not comply with the applicable
Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.3(k)(1)(A) (providing
that appendix must contain certified or sworn copy of any order complained of, or
any other document showing the document complained of); Tex. R. App. P.
52.7(a)(1) (requiring relator to file with petition certified or sworn copy of every
document that is material to relator’s claim and that was filed in any underlying
proceeding); Tex. R. App. P. 52.7(a)(2) (requiring relator to file with petition
properly authenticated transcript of any relevant testimony from any underlying
proceeding, including any exhibits offered in evidence, or statement that no
testimony was adduced in connection with matter complained of); see also Tex. Civ.
Prac. & Rem. Code § 132.001(e) (providing that unsworn declaration from inmate
may be used in lieu of written sworn declaration).1 We further gave relator notice
that his petition would be dismissed unless relator filed (1) an amended petition and
record that complies with Rule 52 including unsworn declarations at the end of both
the amended petition and record or (2) an unsworn declaration that specifically
describes and authenticates the orders, documents, transcripts, and exhibits attached
to relator’s previously filed mandamus appendix or record.
Relator has not cured all defects in his petition. Specifically, relator has not
filed an unsworn declaration made under penalty of perjury. Instead, relator stated:
“The information in the appendix to my original petition and record in the above
styled cause, any order complained of, including any orders, transcripts and exhibits
attached with the original petition, and every document that is material to my claim
1
Relator is an incarcerated inmate.
2
for relief, and everything else I submitted to this Honorable Court, whether explicitly
mentioned in this declaration or not, including exhibits offered in evidence,
declarations, letters and any other or any other documents submitted by me in the
original petition is true and correct to my knowledge.” An unsworn declaration made
under this section must be: (1) in writing; and (2) subscribed by the person making
the declaration as true under penalty of perjury. Tex. Civ. Prac. & Rem. Code
§ 132.001(c). “The inclusion of the phrase ‘under penalty of perjury’ is the key to
allowing an unsworn declaration to replace an affidavit.” Dominguez v. State, 441
S.W.3d 652, 658 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Bahm v.
State, 219 S.W.3d 391, 393–94 (Tex. Crim. App. 2007) (applying prior version of
statute that limited use of unsworn declarations to inmates)). Merely stating that
documents are “true and correct to my knowledge” is insufficient to authenticate
documents under Texas Rule of Appellate Procedure 52.7(a) and Civil Practices and
Remedies Code section 132.001(e).2
2
The form for the unsworn inmate declaration is:
My name is ___________________ __________________ __________________,
(First) (Middle) (Last)
my date of birth is _________________, and my inmate identifying number, if any, is
___________________________________.
I am presently incarcerated in _____________________________________________
(Corrections unit name)
in ________________, _______________, ________________, _______________.
(City) (County) (State) (Zip Code)
I declare under penalty of perjury that the foregoing is true and correct.
Executed on the _________ day of _______________, _______________.
(Month) (Year)
______________________________________
Declarant
Tex. Civ. Prac. & Rem. Code Ann. § 132.001(e).
3
Accordingly, we dismiss relator’s petition for writ of mandamus. We also
dismiss as moot relator’s motion for temporary relief and motion to proceed without
payment of costs.
PER CURIAM
Panel consists of Justices Wise, Spain, and Hassan.
4