In Re: Karla D. Stover and Robert J.S. Thompson v. the State of Texas ( 2023 )

DENIED and Opinion Filed May 24, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00480-CV
IN RE KARLA D. STOVER AND ROBERT J.S. THOMPSON, Relators
Original Proceeding from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-07079
MEMORANDUM OPINION
Before Justices Pedersen, III, Nowell, and Miskel
Opinion by Justice Nowell
Before the Court is relators’ May 19, 2023 petition for writ of mandamus
wherein relators seek relief from the trial court’s denial of their motion to stay.
Entitlement to mandamus relief requires relators to demonstrate that the trial
court clearly abused its discretion and that they lack an adequate remedy by appeal.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). Relators bear the burden of providing the Court with a sufficient record
to show they are entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding). Because the parties in an original proceeding assemble
their own record, this Court strictly enforces the requirements of rule 52 to ensure
the integrity of the mandamus record. In re Vasquez, No. 05-15-00592-CV, 2015
WL 2375504, at *1 (Tex. App.—Dallas May 18, 2015, orig. proceeding) (mem. op.).
As a threshold matter, we note that relators did not include in their appendix
or record a written order denying their motion to stay. Instead, relators included what
appears to be an email from the trial court administrator stating that the judge had
denied the motion to stay. We question whether such an email constitutes a sufficient
trial court ruling subject to mandamus review. See, e.g., In re Cokinos, No. 05-16-
01331-CV, 2016 WL 7163968, at *1 (Tex. App.—Dallas Nov. 16, 2016, orig.
proceeding) (mem. op.) (discussing requirement to include a clear, specific, and
enforceable order that is adequately shown by the record). However, we need not
decide that question today because relators’ record does not otherwise comply with
the requirements of Texas Rule of Appellate Procedure 52. See TEX. R. APP. P.
52.3(k)(1)(A), 52.7(a)(1), 52.7(a)(2).
For example, the documents contained in relators’ appendix and record are
neither certified nor sworn copies. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Certified copies may be ordered from the district clerk. See In re Hamilton, No. 05-
19-01458-CV, 2020 WL 64679, at *1 (Tex. App.—Dallas Jan. 7, 2020, orig.
proceeding) (mem. op.). Documents become sworn copies when they are attached
to an affidavit or to an unsworn declaration stating under penalty of perjury that the
person making the affidavit or unsworn declaration has personal knowledge that the
copies of the documents attached are correct copies of the originals. See id.; see also
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TEX. CIV. PRAC. & REM. CODE ANN. § 132.001. Relators included in their petition a
certification from their attorney that does not invoke the penalty of perjury stating
that “the petition is accompanied by an Appendix containing certified copies of
every document material to the claim for relief.” The documents in the appendix and
record, however, are not actually certified by the district clerk. And we conclude that
the attorney’s certification is insufficient to make the documents sworn copies. See
In re La Energia Nortena, LLC, No. 05-22-01272-CV, 2023 WL 3579442, at *1
(Tex. App.—Dallas May 22, 2023, orig. proceeding) (mem. op.).
Additionally, relators’ petition shows that the trial court held a hearing on
relators’ motion to stay. Relators’ petition included a statement that “the petition is
accompanied by an Appendix containing . . . the properly authenticated transcript of
any relevant testimony from any underlying proceeding, including any exhibits
offered into evidence.” Relators, however, did not include a properly authenticated
transcript of any relevant testimony. And we conclude that the foregoing statement
fails to otherwise satisfy Rule 52.7(a)(2). See TEX. R. APP. P. 52.7(a)(2). As a result,
we conclude that relators have failed to meet their burden to provide a sufficient
record.
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Accordingly, we deny relators’ petition for writ of mandamus. We also deny
relators’ motion for emergency stay of proceedings as moot.
/Erin A. Nowell//
230480f.p05 ERIN A. NOWELL
JUSTICE
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