in Re D.S.W., a Child

Order filed September 1, 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
ORDER
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.
We previously notified relator as follows:
Relator’s petition does 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, 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).
However, we did not notify relator that the petition was subject to dismissal without
further notice if the mandamus appendix and record were not corrected. See In re
Kholaif, 624 S.W.3d 228, 231 (order), mand. dism’d, 615 S.W.3d 369 (Tex. App.—
Houston [14th Dist.] 2020) (orig. proceeding); see also Tex. R. 52.3(k)(1)(A),
52.7(a)(1), 52.7(a)(2); Tex. Civ. Prac. & Crim. Code Ann. § 132.001.
Relator responded as follows:
UNSWORN DECLARATION
CAUSE# 14-21-00700-CV
My name is [D.S.W.], my date of birth is . . . , and my inmate
identifying number is . . . . I am presently incarcerated in Eden
Detention Center, in the city of Eden, Concho County, in the state of
Texas, 76837.
I declare under penalty of perjury that the foregoing is true and
correct.
Executed on the 14th day of February, 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), 52.7(a)(1), and 52.7(a)(2), 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));
(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)); and
(3) in the mandamus record, “a properly authenticated transcript of any
relevant testimony from any underlying proceeding, including any exhibits
offered in evidence” (Tex. R. App. P. 52.7(a)(2)).1
In short, to authenticate the items, the relator must submit a declaration that states
under penalty of perjury that the items (orders, documents, transcripts, and exhibits)
attached to relator’s mandamus appendix and record are true and correct. This can
1
If there was no relevant testimony from any underlying proceeding, including any exhibits
offered in evidence, Rule 52.7(a)(2) requites “a statement that no testimony was adduced in
connection with the matter complained.” Tex. R. App. P. 52.7(a)(2).
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.”
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, documents, transcripts, and exhibits 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)).