Opinion
06-21-00054-CV
06-15-2021
IN RE DAMYIEN PORTER, WARFAB INDUSTRIES, INC., AND WARFAB, INC.
Date Submitted: June 14, 2021
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
In this original proceeding, Damyien Porter, Warfab Industries, Inc., and Warfab Industries (collectively Warfab) have filed a petition for a writ of mandamus requesting this Court to compel the trial court to vacate its order denying Warfab's plea to the jurisdiction and plea in abatement. We conclude that the petition is not authenticated as required by the Texas Rules of Appellate Procedure and that the documents attached to the mandamus record are not properly sworn. As a result, we deny the requested relief.
Rule 52.3(j) of the Texas Rules of Appellate Procedure provides, "The person filing the petition must certify that he or she 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). No such certification accompanied Warfab's petition. Because it fails to comply with the requirement of Rule 52.3(j), we conclude that Warfab's petition is not authenticated as required by the Texas Rules of Appellate Procedure.
In addition, a relator must file with the petition "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[.]" Tex.R.App.P. 52.7(a)(1); see Tex. R. App. P. 52.3(k)(1)(A) ("The appendix must contain . . . a certified or sworn copy of any order complained of, or any other document showing the matter complained of . . . ."). "Documents that are attached to a properly prepared affidavit are sworn copies," while documents attached to an improperly prepared affidavit are not. In re Henderson, No. 06-15-00034-CR, 2015 WL 13522812, at *1 (Tex. App.-Texarkana Mar. 10, 2015, orig. proceeding) (mem. op.) (citing In re Butler, 270 S.W.3d 757, 759 (Tex. App.-Dallas 2008, orig. proceeding)).
Warfab's counsel signed an affidavit that stated, "[T]he facts stated in this affidavit are true and correct," "I am an agent of the relator," and "[t]he trial court based its orders on the papers on file in this case." The affidavit does not state that all documents attached to the mandamus record by Warfab were filed in the underlying action. See In re Gilead Scis., Inc., No. 06-21-00027-CV, 2021 WL 1537482, at *2 (Tex. App.-Texarkana Apr. 20, 2021, orig. proceeding) (mem. op.); In re Long, 607 S.W.3d 443, 445 (Tex. App.-Texarkana 2020, orig. proceeding). While counsel signed a separate declaration, it merely stated that "the above and foregoing are true and correct copies pleadings [sic] submitted to Fairchild, Price, Haley & Smith, LLP." This declaration does not serve to clarify which documents in the mandamus record were actually filed with the trial court.
"'Because the record in a mandamus proceeding is assembled by the parties,' we must 'strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the mandamus record.'" In re Morehead, No. 06-21-00025-CV, 2021 WL 1652064, at *1 (Tex. App.-Texarkana Apr. 28, 2021, orig. proceeding) (mem. op.) (quoting In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.-Dallas Mar. 22, 2019, orig. proceeding) (mem. op.)).
Since Warfab did not comply with the Texas Rules of Appellate Procedure, we deny the petition for a writ of mandamus.
We also deny Warfab's accompanying motion for an emergency stay of proceedings in the trial court.