DENY; and Opinion Filed May 19, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00584-CV

                              IN RE DIXIE FRANKLIN, Relator

                 Original Proceeding from the 301st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DF-09-07141-T

                             MEMORANDUM OPINION
                        Before Justices Bridges, Lang-Miers, and Myers
                                Opinion by Justice Lang-Miers
        Relator files this petition for writ of mandamus, seeking relief from the trial court’s May

5, 2014 temporary orders. The facts and issues are well known to the parties, so we need not

recount them herein. Both the Rule 52.3(j) and 52.3(k) certifications of the petition for writ of

mandamus and the appendix are defective. TEX. R. APP. P. 52.3(j), (k).           The rule 52.3(j)

certification must include the statement that the person filing the petition “has reviewed the

petition and concluded that every factual statement is supported by competent evidence included

in the appendix or record.” TEX. R. APP. P. 52.3(j). The crucial element missing in the rule

52.3(j) certification of this petition is the certification as to the competence of the evidence

supporting the petition for writ of mandamus.

       The rule 52.3(k) certification of the appendix is defective because the attached documents

are not certified copies and relator’s counsel only swears that the documents are true and correct

copies “to the best of my knowledge and ability” and “to the best of my knowledge.” To be a
sworn copy, documents must be attached to a proper affidavit. Republic Nat’l Leasing Corp. v.

Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam). An affidavit must affirmatively show

it is based on the personal knowledge of the affiant. Brownlee v. Brownlee, 665 S.W.2d 111,

112 (Tex. 1984). An affidavit under Rule 52.3(k) must “positively and unqualifiedly represent

the ‘facts’ as disclosed to be true and within the affiant's personal knowledge.” In re Butler, 270

S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding) (citing Brownlee, 665 S.W.2d at

112). As in Butler, in this case the affiant does not swear to personal knowledge the copy of the

documents in the appendix are correct copies of the originals. Rather, she equivocates “to the

best of my knowledge,” and “to the best of my knowledge and ability.” Both of these statements

imply less than personal knowledge and do not meet the requirements of rule 52.3(k). See Butler,

270 S.W.3d at 759; Brownlee, 665 S.W.2d at 112. Because the appendix is deficient under rule

52.3(k), the mandamus record is also deficient under rule 52.7. TEX. R. APP. P. 52.7 (relator

must 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”).         Because we

conclude relators’ petition and record are not authenticated as required by the Texas Rules of

Appellate Procedure, we DENY the petition for writ of mandamus.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE

140584F.P05




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