DENIED and Opinion Filed March 4, 2021
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00044-CV
IN RE ROYAL DOUGLAS ROBINSON, Relator
Original Proceeding from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F16-00017-U
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
In this original proceeding, Royal Douglas Robinson seeks mandamus relief
to compel the trial court to rule upon five motions for forensic DNA testing he alleges
he filed between March 31, 2017 and April 27, 2020. Because his petition does not
satisfy the requirements of rule 52 of the rules of appellate procedure, we deny relief.
A petition seeking mandamus relief must contain a certification stating that
the relator “has reviewed the petition and concluded that every factual statement in
the petition is supported by competent evidence included in the appendix or record.”
TEX. R. APP. P. 52.3(j). The court requires relator’s certification to state substantially
what is written in rule 52.3(j). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—
Dallas 2008, orig. proceeding); see also In re Hughes, 607 S.W.3d 136, 137 (Tex.
App.—Houston [14th Dist.] orig. proceeding) (dismissing case for deficiencies in
mandamus petition).
Relator’s petition contains an “affidavit” in which relator swears “under oath
that the facts and allegations in the above application for writ of mandamus are true
and correct.” Thus, because relator’s petition does not certify that he “has reviewed
the petition and concluded that every factual statement in the petition is supported
by competent evidence included in the appendix or record,” or language
substantially similar, the petition is not certified as required by rule 52.3(j). See TEX.
R. APP. P. 52.3(j); Butler, 270 S.W.3d at 758; Hughes, 607 S.W.3d at 137.
Furthermore, relator must file with his petition a record sufficient to establish
his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)
(orig. proceeding). To obtain mandamus relief compelling the trial court to rule on
his motions, relator must show (1) the trial court had a legal duty to rule on the
motions, (2) 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.); In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San
Antonio 2003, orig. proceeding) (per curiam).
Rule 52.3(k)(1)(A) governs the record relator must submit with a petition for
writ of mandamus and requires relator to file an appendix with his petition that
contains “a certified or sworn copy of any order complained of, or any other
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document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule
52.7(a)(1) requires the relator to file with the 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). Under these rules, relator’s
petition must be supported by documents, such as copies of the motions and the trial
court’s docket sheet, that will show what motions relator filed, when the motions
were filed, and how relator called the trial court’s attention to the motions. See
Prado, 522 S.W.3d at 2. 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).
Relator has not attached to his petition copies of any of the motions for which
he seeks the court’s assistance in forcing the trial court to rule. He has attached
copies of purported pages from the trial court’s docket sheet showing the dates and
titles of various filings in his case, but the pages are not certified or sworn copies as
required to authenticate them under the rules of appellate procedure. See TEX. R.
APP. P. 52.3(k)(1)(A), 52.7(a)(1).
To qualify as sworn copies, relator, an inmate, could attach the documents to
an affidavit or an unsworn declaration conforming to section 132.001(e) of the Texas
Civil Practice and Remedies Code. See Butler, 270 S.W.3d at 759; In re Long, 607
S.W.3d 443, 445 (Tex. App.—Texarkana 2020, orig. proceeding); Hughes, 607
S.W.3d at 138 n.2. The affidavit or unsworn declaration must affirmatively show it
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is based on relator’s personal knowledge and must contain direct, unequivocal
statements to which perjury could be assigned. See Butler, 270 S.W.3d at 759; Long,
607 S.W.3d at 445. An affidavit or unsworn declaration would comply with the rule
if it stated, under penalty of perjury, that the affiant has personal knowledge that the
copies of the documents in the appendix are true and correct copies of the originals.
See Butler, 270 S.W.3d at 759.
Relator can satisfy these requirements, Civil Practice and Remedies Code
section 132.001(e), and at the same time, the authentication requirement of appellate
procedure rules 52.3(k)(1)(A), 52.7(a)(1), by including the language in 132.001(e):
My name is [first] [middle] [last], my date of birth is [date], and
my inmate identifying number, if any, is [inmate number]. I am
presently incarcerated in [Corrections unit name] in [city], [county],
[state], [zip code]. I declare under penalty of perjury that the foregoing
is true and correct.
Executed on the ___ day of [month] [year].
[signature]
Declarant.
But because relator has not filed an appendix of supporting documents that
are either certified copies or sworn copies verified with an affidavit or unsworn
declaration, relator has not met his burden to furnish a record supporting mandamus
relief. See Butler, 270 S.W.3d at 759; Long, 607 S.W.3d at 446.
Because relator’s petition is not certified and is not accompanied by a
supporting record showing he is entitled to mandamus relief, we are bound to deny
relator’s petition. That said, we deny relief without prejudice to relator refiling the
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petition—meaning that relator may refile the petition (1) properly certified as
discussed with reference to Civil Practice and Remedies Code section 132.001(e)
above, (2) accompanied by a record that shows relator filed his motions with the trial
court, and (3) that he has requested a ruling from the trial court aside from simply
filing the motions for DNA testing. See Butler, 270 S.W.3d at 758–59; Molina, 94
S.W.3d at 886.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
210044F.P05
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