## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00082

- CV

IN RE MASON

- GIBSON, INC. D/B/A HOLIDAY INN EXPRESS PALESTINE, TEXAS

Original Mandamus Proceeding

Before Morriss, C.J., Burgess and Stevens, JJ. Memorand um Opinion by Justice Burgess2 

### ME MORANDUM OPINION
On October 1, 2021, Relator Mason

- Gibson, Inc., filed a petition for a writ of mandamus complaining of the trial court’s September 30, 2021, order purporting to modify the trial court’s judgment and granti ng Real Party i n Interest Christopher Jaynes’s motion to compel and motion for sanctions, ordering Mason

- G ibson to produce witnesses for depositions within one week , and requiring it to pay Jaynes’s attorney fees associated with the motion to compel. We d eny the petition. 1 After reviewing the record, we conclude that Relator failed to comply with Rule 52.7(a)(1) of the Texas Rules of Appellate Procedure. Rule 52.7(a)(1) states that a relator must file with the petition “a certified or sworn copy of eve ry document that is ma terial to the relator’s claim for relief and that was filed in any underlying proceeding.” T EX
. R. A PP
. P . 52.7(a)(1); see T EX
. R. A PP
. P . 52.3(k)(1)(A) (“The appendix must contain . . . a certified or sworn copy of any order complai ned of, or any other do cument 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 Long , 607 S.W.3d 443, 44 5 (Tex. App.

— Texarkana 2020, orig. proceeding) (quoting In re Henderson , No. 06

- 15

- 00034

- CR, 2015 WL 13522812, at *1 (Tex. App.

— Texarkana Mar. 10, 2015, orig. proceeding) (mem. op. , not designated for publication ) (citing In re Butler , 270 S.W.3d 757, 759 (Tex. App.

— Dallas 2008, orig. proceeding))). “The affidavit ‘must affirmatively show it is based on

1 In conjunction with the petition for a writ of mandamus, Relator filed a motion for an emergency stay of all trial court proceedings, including any obligation to produce witnesses for depositions as the trial court o rdered o n Se p tember 30, 2021. Because we deny the mandamus petition, the emergency motion is also denied.3

the personal knowledge of the affiant’; the affidavit ‘is insufficient unless the statements in it are direct and unequivocal and perjury can be assig n ed t o them.’” Id

. (quoting In re Henderson , 2015 WL 13522812, at *1 (citing In re Butler , 270 S.W.3d at 759)). Although the verification filed by Relator stated that “the documents included in this Record are true and correct copies of pleadings or other doc u ments filed in the trial court in this action,” this language is insufficient because it contains no recitation that it was based on the personal knowledge of the affiant. Id

. at 445; see In re Landstar , No. 06

- 21

- 00068

- CV , 2021 WL 3411534 , at *1 (Te x . A p p.

— Texarkana Aug. 4, 2021, orig. proceed ing) (mem. op.); In re Quintana , No. 02

- 15

- 00305

- CV, 2015 WL 6395639, at *2 (Tex. App.

— Fort Worth Oct. 22, 2015, orig. proceeding) (per curiam ) (mem. op.) (finding insufficient the recitation that “documents att a ch e d in the appendix are documents filed in this cause of action”); In re Butler , 270 S.W.3d at 758 (finding insufficient the recitation that “[t]he documents contained in the attached Record and attached Appendix to the Relators’ Petition for Writ of Man d am u s are to my knowledge true and correct copies of the o riginal documents”); see also In re Gentry , No. 05

- 20

- 00442

- CV, 2020 WL 2519892, at *1 (Tex. App.

— Dallas May 18, 2020, orig. proceeding) (mem. op.) (finding insufficient the recitation on a certific a ti o n that the petition was “TRUE and CORRECT, to the best of my knowledge under the threat of perjury”). “‘Because the record in a mandamus proceeding is assembled by the parties,’ we must ‘strictly enforce[] the authentication requirements of rule 52 to en s u re the integrity of the mandamus record. ’ ” In re Long , 607 S.W.3d at 445

– 46 (alteration in original ) (quoting In re Smith , No. 05

- 19

- 00268

- CV, 2019 WL 1305970, at *1 (Tex. App.

— Dallas Mar. 22, 2019, orig.4

proceeding) (mem. op.) (quoting In re McKinney , N o . 05

- 14

- 01513

- CV, 2014 WL 7399301, at *1 (Tex. App.

— Dallas Dec. 15, 2014, orig. pro ceeding) (mem. op.))). “It is the relator’s burden to provide this Court with a sufficient record to establish the right to mandamus relief.” In re Long , 607 S.W.3d at 4 4 6 (quoting In re Henderson , 2015 WL 13522812, at *2) (citing T EX
. R. A PP
. P

. 52.3(k)(1 )(A), 52.7(a)(1))). Because the verification is insufficient, the documents attached thereto are not sworn copies as is required by Rule s 52.3(k)(1)(A) and 52.7(a)(1) o f t h e Texas Rules of Appellate Procedure. See T EX
. R. A PP
. P

. 52.3(k)(1)(A), 52.7(a)(1)

. As a result, the record is not sworn

. We, therefore, deny the petition for a writ of mandamus.

Ralph K. Burgess Justice Date Submitted: October 4, 20 2 1 D a te Decided: October 4 , 2021