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
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.




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