Petition for Writ of Mandamus Denied and Memorandum Opinion filed 

March 4, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-01059-CV

IN RE APPROXIMATELY $61,083.00, JIMMY SAMUEL, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

157th District Court

Harris County, Texas

Trial Court Cause No. 2012-71992

MEMORANDUM OPINION

On November 25, 2013, relator Jimmy Samuel filed a petition for writ of 

mandamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 

52. In the petition, relator asks this Court to compel the Honorable Randy Wilson, 

presiding judge of the 157th District Court of Harris County, to vacate an order 

granting a motion pursuant to Texas Rule of Civil Procedure 198.3 to withdraw 

deemed admissions. On February 18, 2014, relator filed a supplemental petition for 
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writ of mandamus, reiterating the claims in his original petition, and further asking 

this Court to compel the trial court to vacate an order denying relator’s renewed 

motion for summary judgment. We deny relator’s original petition and 

supplemental petition. 

BACKGROUND

Real party in interest the State of Texas, represented by the Harris County 

District Attorney’s Office, commenced on December 5, 2012 an asset forfeiture 

proceeding pursuant to Chapter 59 of the Texas Code of Criminal Procedure with 

respect to approximately $61,083.00 in U.S. currency previously seized from 

relator Jimmy Samuel. Relator filed an answer to the forfeiture petition on January 

25, 2013, and on the same day served the State with discovery requests in the form 

of interrogatories, requests for admissions, requests for production, and requests 

for disclosure. As relevant here, the requests for admissions included thirteen 

individual requests, many of which pertained directly to the merits of the State’s 

forfeiture claim. 

Instead of responding to the requests for admissions, the State filed a motion 

for protective order and motion to abate on February 15, 2013, requesting the trial 

court to stay all proceedings, including discovery, until disposition of the 

underlying criminal investigation and any resulting prosecution, or at least until 

July 2013. Relator objected to the State’s motion, and requested the court set the 

matter for an oral hearing. The trial court, however, did not set a hearing date for 

the motion, and it remained pending on the trial court’s docket without resolution. 

Given the pendency of its motion for protective order and abatement, the State did 

not respond to the requests for admissions. 
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On August 14, 2013, relator moved for summary judgment based on the 

requests having been deemed admitted by operation of Texas Rule of Civil 

Procedure 198.2(c) due to the State’s lack of a response to the requests. On 

September 6, 2013, the State filed a “Motion to Strike Alleged Deemed 

Admissions” pursuant to Texas Rule of Civil Procedure 198.3. The trial court held 

a hearing on the motion to strike on September 13, 2013, and ruled that the 

requests were not deemed admitted against the State, but, if they were, the court 

granted the State’s motion to strike the admissions pursuant to Rule 198.3. Relator 

then filed his original petition for writ of mandamus.

On November 27, 2013, relator renewed his motion for summary judgment 

before the trial court, asserting that his requests for admissions were once again 

deemed admitted by operation of Texas Rule of Civil Procedure 198.2(c) due to 

the State’s alleged failure to timely respond to the requests following the trial 

court’s September 13, 2013 ruling. On January 23, 2014, the trial court denied 

relator’s renewed motion for summary judgment. Relator then filed his 

supplemental petition for writ of mandamus. 

THE MANDAMUS STANDARD

Generally, mandamus relief is appropriate only when the trial court clearly 

abused its discretion and the relator has no adequate remedy by appeal. In re 

Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). “A trial court abuses 

its discretion if it clearly fails to analyze the law correctly or apply the law 

correctly to the facts.” In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 

(Tex. App.—Houston [14th Dist.] 2012, orig. proceeding). As the party seeking 
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relief, the burden to demonstrate entitlement to mandamus is on relator. See 

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).

ANALYSIS

The Texas Rules of Appellate Procedure set forth specific requirements 

concerning the documentation necessary to support a petition for writ of 

mandamus. Specifically, relator is required to file an appendix containing “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). Also, relator is 

required to file a record containing “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,” as well as “a properly authenticated transcript of any relevant 

testimony from any underlying proceeding.” Tex. R. App. P. 52.7(a). Further, 

relator must certify 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). 

Relator does not comply with these rules here.

As an initial matter, relator does not include a “certified or sworn copy” of 

the trial court’s order granting the State’s motion to withdraw deemed admissions

or of the other documents included in the appendix to his original petition. 

Although relator includes a “certification” at the beginning of his appendix in the 

style of an affidavit, it lacks the attestation of a notary public or other official as 

required for a sworn affidavit. See In re Butler, 270 S.W.3d 757, 759 (Tex. App.—

Dallas 2008, orig. proceeding) (“An affidavit is a ‘statement in writing of a fact or 

facts signed by the party making it, sworn to before an officer authorized to 

administer oaths, and officially certified to by the officer under his seal of office.’”) 
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(quoting Goggin v. Grimes, 969 S.W.2d 135, 138 (Tex. App.—Houston [14th 

Dist.] 1998, no pet.) (emphasis added). Relator’s certification also does not satisfy 

the requirements for an unsworn declaration. See Tex. Civ. Prac. & Rem. Code 

§ 132.001. In addition, there is other relevant information relator cites in his 

original petition that he omits from his appendix, and relator does not include an 

appendix with his supplemental petition. Consequently, there are several instances 

in both his original petition and supplemental petition where relator refers to facts 

that have no documentation in support. 

Relator is asking this Court to determine that the trial court abused its 

discretion, but does not provide documentation sufficient to demonstrate how the 

trial court analyzed the law, what facts were before the court, or how the court 

applied that law with respect to those facts. As relator acknowledges, a trial court 

may allow the withdrawal of deemed admissions upon the showing of good cause 

and no undue prejudice. Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011) (per 

curiam) (citing Tex. R. Civ. P. 198.3). Moreover, a trial court has “broad discretion 

to permit or deny the withdrawal of deemed admissions,” although the court 

“cannot do so arbitrarily, unreasonably, or without reference to guiding rules or 

principles.” Marino, 355 S.W.3d at 633. Thus, to demonstrate an abuse of 

discretion here, relator would have to prove, with reference to documents in the 

record, that the trial court could not permissibly have concluded that the standards 

in Rule 198.3 were satisfied based on the facts before it. But without more 

information about what occurred before the trial court, relator cannot make such a

demonstration.
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“This court cannot make a sound decision based on an incomplete picture. 

But that is precisely what relator is asking us to do by her failure to provide a 

sufficient mandamus record.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston 

[14th Dist.] 2011, orig. proceeding). Without a complete picture of what facts were 

before the trial court and how the court applied the law to those facts in reaching 

its decision, this Court does not have a basis on which to conclude that the trial 

court abused its discretion. See id. at 814 (“[I]n the final analysis, this court cannot 

and will not find an abuse of discretion on an incomplete record.”). It is relator’s 

burden to provide this Court with a sufficient record to establish the right to 

mandamus relief. See Walker 827 S.W.2d at 837. Relator has not satisfied his 

burden.

CONCLUSION

For the foregoing reasons, we deny relator’s original petition and 

supplemental petition for writ of mandamus. 

PER CURIAM

Panel Consists of Justices McCally, Busby, and Wise.