in Re D. S. W. ( 2022 )

Memorandum Opinion on Order filed November 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00833-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 ON ORDER
On November 10, 2022, 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 rule on his bill of review.
Relator’s petition does not comply with the 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
document complained of), 52.7(a)(1) (providing record must contain certified or
sworn copy of every document that is material to relator’s claim for relief and that
was filed in any underlying proceeding). Also, relator’s unsworn declaration does
not comply with section 132.001(e) of the Civil Practice and Remedies Code. See
Tex. Civ. Prac. & Rem. Code § 132.001(e) (providing that unsworn declaration from
inmate may be used in lieu of written sworn declaration, if it is made under penalty
of perjury and includes inmate’s name, date of birth, identifying number, and prison
unit, and city, county, state, and zip code of prison unit). Relator states in his
unsworn declaration:
My name is [D.S.W.], my date of birth is . . . , and my inmate
identifying number is . . . . I am presently incarcerated in Prairieland
Eden Detention Center, in the city of Alvarado, Johnson County, in the
state of Texas, zip code 76009. I declare under penalty of perjury that
the foregoing mandamus record, including every document that is
material to relator’s claim for relief and that was filed in any underlying
proceeding, is true and correct.
Additionally, I declare that there was no relevant testimony that was
adduced from me in connection with the matter complained of. I am
unaware of any other testimony that the court may have taken in
connection with this matter.
Executed on the 31st day of October, 2022.
While relator substantially complied with form of the unsworn declaration
authorized by Civil Practice and Remedies Code section 132.001(e), relator’s
unsworn declaration had no “foregoing” items attached before the unsworn
declaration, so the only things relator declared were true and correct under penalty
of perjury were relator’s name, birthdate, and information about his incarceration,
not the items attached to relator’s mandamus appendix and record.
The purpose of the unsworn declaration is to authenticate the items that form
the mandamus record. To comply with Texas Rules of Appellate Procedure
52.3(k)(1)(A) and 52.7(a)(1), relator’s declaration must refer not only to the section
132.001(e) information, but also refer to the following items:
(1) in the appendix to relator’s petition, “any order complained of, or any other
document showing the matter complained of” (Tex. R. App. P.
52.3(k)(1)(A)); and
(2) in the mandamus record, “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)).
In short, to authenticate the items, the relator must submit a declaration that states
under penalty of perjury that the items (orders and documents) attached to relator’s
mandamus appendix and record are true and correct.1 This can be accomplished by
placing the unsworn declaration after the items (therefore making the items
“foregoing”) or by specifically describing the items in the unsworn declaration rather
than referencing the items as “foregoing.”2
1
Relator specifically complied with Texas Rule of Appellate Procedure 52.7(a)(2) (concerning
transcript of any relevant testimony from any underlying proceeding, including exhibits offered in
evidence) by stating no testimony was adduced in connection with the matter complained. If such testimony
had been adduced (including exhibits), then relator would have been required to refer to that testimony in
his unsworn declaration.
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)
Relator is notified that this original proceeding is subject to dismissal without
further notice unless relator files with the clerk of this court no later than 45 days
from the date of this order either (1) an amended petition and record that comply
with Rule 52 with unsworn declarations at the end of both the amended petition and
record or (2) an unsworn declaration that specifically describes and authenticates the
orders and documents attached to relator’s previously filed mandamus appendix and
record.
PER CURIAM
Panel consists of Justices Wise, Spain, and Hassan. (Wise, J., Notice is not required
before dismissing a petition for writ of mandamus. See In re Kholaif, 624 S.W.3d
228 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (Frost, C.J.,
dissenting)).
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).