In Re: Howard Holland v. the State of Texas ( 2023 )

DENIED and Opinion Filed May 10, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00342-CV
IN RE HOWARD HOLLAND, Relator
Original Proceeding from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 29317D-422
MEMORANDUM OPINION
Before Justices Partida-Kipness, Carlyle, and Garcia
Opinion by Justice Garcia
In his petition for writ of mandamus, relator asks us to compel the trial court
to rule on an application for a writ of habeas corpus that he alleges he filed on May
26, 2022.
To obtain mandamus relief compelling the trial court to rule on a motion, a
relator must show (1) the trial court had a legal duty to rule on the motion, (2) the
relator requested a ruling, and (3) the trial court failed or refused to do so within a
reasonable time. In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig.
proceeding) (mem. op.). It is relator’s burden to provide a record sufficient to
establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding); TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1). A relator’s status
as an incarcerated person does not relieve him of the obligation to file a sufficient
record. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020,
orig. proceeding).
Rule 52.3(k)(1)(A) requires a relator to file an appendix with his petition that
contains “a certified or sworn copy of any order complained of, or any other
document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule
52.7(a)(1) requires a relator to file with his petition “a certified or sworn copy of
every document that is material to the relator’s claim for relief that was filed in any
underlying proceeding.” TEX. R. APP. P. 52.7(a)(1).
Here, relator filed with his petition an unsworn declaration wherein he
provided his identifying information and then stated: “I declare under penalty of
perjury that the foregoing is true and correct.” It is not clear whether relator included
this declaration in order to swear to documents included in his mandamus record. To
the extent he did, we conclude his unsworn declaration is insufficient to meet the
requirements of rule 52.3(k)(1)(A) and 52.7(1)(a). See In re Butler, 270 S.W.3d 757,
759 (Tex. App.—Dallas 2008, no pet.) (discussing requirements of affidavits filed
in support of a petition for writ of mandamus); see also TEX. CIV. PRAC. & REM.
CODE ANN. § 132.001 (setting out requirements for unsworn declarations); In re
Hamilton, No. 05-19-01458-CV, 2020 WL 64679, at *1 (Tex. App.—Dallas January
7 2020, orig. proceeding) (mem. op.) (acknowledging unsworn declarations may
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substitute for affidavits in original petitions seeking a petition for writ of mandamus
if they meet the requirements of section 132.001).
Relator’s unsworn declaration included no particular statement wherein he
declared under penalty of perjury that any document included in his appendix or
record was a true and correct copy of the original.
We conclude that relator has failed to meet his burden to provide a sufficient
record. Accordingly, we deny the petition for writ of mandamus.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
230342F.P05
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