DENIED and Opinion Filed November 12, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00774-CV

No. 05-21-00775-CV

IN RE ROGER ALLEN FOX, Relator

Original Proceedings from the Criminal District Court No. 2

Dallas County, Texas

Trial Court Cause Nos. F21-52968-IH & F21-52969-VH

MEMORANDUM OPINION

Before Justices Schenck, Nowell, and Garcia

Opinion by Justice Nowell 

Roger Allen Fox has filed a petition for writ of mandamus contending the trial 

court has failed to act on his pro se application for writ of habeas corpus requesting 

a reduction in his $100,000 bail on two pending criminal cases. Relator petitions the 

Court to reduce his bond to $15,000 on each case. Concluding the petition does not 

meet the requirements of rule of appellate procedure 52, we deny relief without 

prejudice to filing a new petition that conforms to rule 52.

A petition seeking mandamus relief must include 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.” 
–2–

TEX. R. APP. P. 52.3(j). The certification must 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). 

In this case, relator has filed an “Inmate Declaration” stating that he does 

“declare under penalty of perjury the above and forgoing is true and correct to the 

best of my personal knowledge.” Relator’s declaration does not indicate that the 

statements in the petition are supported by competent evidence in the appendix or 

record. Thus his certification does not meet the requirement of rule 52.3(j). See id. 

Moreover, the only document relator does provide, a file-stamped copy of an 

application for writ of habeas corpus, is not authenticated as the appellate rules 

require and is, by itself, insufficient to show he is entitled to mandamus relief. 

Relator bears the burden to provide the Court with a sufficient record to establish his 

right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. 

proceeding). To meet his evidentiary burden, rule 52.3(k)(1)(A) requires 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 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).

Because relator’s sole supporting document is neither a certified copy nor a 

sworn copy, it does not comply with the rules of appellate procedure. See Butler, 
–3–

270 S.W.3d at 759. Relator’s status as an inmate does not relieve him of his duty to 

comply with the rules of appellate procedure. In re Foster, 503 S.W.3d 606, 607 

(Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam).

Furthermore, even if relator’s copy of the habeas application was 

authenticated properly, it is insufficient by itself to show he is entitled to mandamus 

relief. To obtain mandamus relief compelling a trial court to rule on his application, 

relator must show (1) the trial court had a legal duty to rule on the application, (2) 

relator requested a ruling, and (3) the trial court failed or refused to do so within a 

reasonable time. See In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas 2017, orig. 

proceeding) (mem. op.); Foster, 506 S.W.3d at 607.

Although relator contends in his petition that the district clerk presented the 

application to the trial court, nothing in the record supports his assertion. Even if 

relator provided sufficient proof that his application was filed, proof of filing does 

not constitute proof that the matter was presented to the trial court with a request for 

a ruling. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, 

orig. proceeding); see also Foster, 506 S.W.3d at 607 (denying mandamus relief on 

ground relator did not file record showing habeas application had been filed and 

presented to trial court judge).

Additionally. even if relator proved he presented the motion for a ruling, the 

file stamp on relator’s application reflects he filed it on August 2, 2021 and he signed 

his petition for writ of mandamus on August 31, 2021. There is no showing in the 
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record that the trial court had a reasonable opportunity to issue a ruling before relator 

sought mandamus relief. See In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San 

Antonio 2003, orig. proceeding) (per curiam) (mandamus not available until trial 

court has had reasonable opportunity to issue ruling); In re Chavez, 62 S.W.3d 225, 

228–29 (Tex. App.—Amarillo 2001, orig. proceeding) (relator bears burden to show 

trial court has had reasonable opportunity to rule on properly filed motion).

On the record presented, relator cannot show that he filed the habeas 

application, requested a ruling, reminded the trial court that the application was

pending, or that the trial court refused to rule on the application within a reasonable 

time. Thus, relator cannot show he is entitled to mandamus relief. See Prado, 522 

S.W.3d at 2; Butler, 270 S.W.3d at 759; Foster, 506 S.W.3d at 607; Molina, 94 

S.W.3d at 886.

We deny the petition for writ of mandamus without prejudice to filing a new 

petition that corrects the deficiencies described in this opinion.

1

210774f.p05

210775f.p05

1 Although not apparent on the record before us, there is an additional reason relator is not eligible for 

mandamus relief. The trial court’s online docket sheet shows relator is represented by counsel. A criminal 

defendant is not entitled to hybrid representation, and the trial court does not have a ministerial duty to rule 

on pro se motions filed by a defendant who is represented by counsel. See, e.g., In re Scott, No. 01-20-

00793-CR, 2020 WL 7062319, at *1 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, orig. proceeding) 

(mem. op., not designated for publication).

/Erin A. Nowell//

ERIN A. NOWELL

JUSTICE