in Re: Dixie Franklin ( 2014 )

DENY; and Opinion Filed May 19, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00584-CV
IN RE DIXIE FRANKLIN, Relator
Original Proceeding from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-09-07141-T
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
Relator files this petition for writ of mandamus, seeking relief from the trial court’s May
5, 2014 temporary orders. The facts and issues are well known to the parties, so we need not
recount them herein. Both the Rule 52.3(j) and 52.3(k) certifications of the petition for writ of
mandamus and the appendix are defective. TEX. R. APP. P. 52.3(j), (k). The rule 52.3(j)
certification must include the statement that the person filing the petition “has reviewed the
petition and concluded that every factual statement is supported by competent evidence included
in the appendix or record.” TEX. R. APP. P. 52.3(j). The crucial element missing in the rule
52.3(j) certification of this petition is the certification as to the competence of the evidence
supporting the petition for writ of mandamus.
The rule 52.3(k) certification of the appendix is defective because the attached documents
are not certified copies and relator’s counsel only swears that the documents are true and correct
copies “to the best of my knowledge and ability” and “to the best of my knowledge.” To be a
sworn copy, documents must be attached to a proper affidavit. Republic Nat’l Leasing Corp. v.
Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam). An affidavit must affirmatively show
it is based on the personal knowledge of the affiant. Brownlee v. Brownlee, 665 S.W.2d 111,
112 (Tex. 1984). An affidavit under Rule 52.3(k) must “positively and unqualifiedly represent
the ‘facts’ as disclosed to be true and within the affiant's personal knowledge.” In re Butler, 270
S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding) (citing Brownlee, 665 S.W.2d at
112). As in Butler, in this case the affiant does not swear to personal knowledge the copy of the
documents in the appendix are correct copies of the originals. Rather, she equivocates “to the
best of my knowledge,” and “to the best of my knowledge and ability.” Both of these statements
imply less than personal knowledge and do not meet the requirements of rule 52.3(k). See Butler,
270 S.W.3d at 759; Brownlee, 665 S.W.2d at 112. Because the appendix is deficient under rule
52.3(k), the mandamus record is also deficient under rule 52.7. TEX. R. APP. P. 52.7 (relator
must file a record containing “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”). Because we
conclude relators’ petition and record are not authenticated as required by the Texas Rules of
Appellate Procedure, we DENY the petition for writ of mandamus.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
140584F.P05
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