                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-18-00309-CV


   IN RE NATURAL GAS CONSULTING & MEASUREMENT, LLC AND J. P. DAVIS,
                             RELATORS


         OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

                                      September 5, 2018

                              MEMORANDUM OPINION
                      Before QUINN, C.J., and PIRTLE and PARKER, JJ.

       Natural Gas Consulting & Measurement, LLC, and J.P. Davis (Natural Gas)

petitioned for a writ of mandamus. We deny it because the petitioner failed to comply

with applicable rules of appellate procedure.

       Per Texas Rule of Appellate Procedure 52.3(k)(1)(A), the appendix to a petition for

‘writ of mandamus must contain “a certified or sworn to copy of any order complained of,

or any other document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A);

see also TEX. R. APP. P. 52.7(a)(1) (obligating the relator to file with the petition “a certified

or sworn to copy of every document that is material to the relator’s claim for relief and that

was filed in any underlying proceeding”); TEX. R. APP. P. 52.7(a)(2) (obligating the relator
to file “a properly authenticated transcript of any relevant testimony . . . including any

exhibits offered in evidence”). Accompanying the appendix at bar is a “declaration”

wherein counsel for the petitioner declared that: “Each of the documents included in the

attached appendix and mandamus record, both sealed and unsealed, is a true and correct

copy of the document identified, as those documents exist in our files.” (Emphasis

added).    Such italicized language conditions the accuracy and authenticity of the

documents to which counsel alludes. In effect, the declarant is not saying, under oath

based on personal knowledge, that the documents are true and correct copies of the

originals but rather that they are true and correct copies of what was found in legal

counsel’s own files. This distinction is important.

       In a direct appeal, the clerk’s and reporter’s records serve as the appellate record

upon which we act. TEX. R. APP. P. 34.1 (stating that the appellate record consists of the

clerk’s record and, if necessary for the appeal, the reporter’s record). Those responsible

for preparing, certifying, and filing their respective portions of the appellate record are the

trial court clerk, and court reporter. TEX. R. APP. P. 35.3(a), (b). In an original proceeding,

there is no “appellate record” per se but rather an appendix containing the information

pertinent to the dispute. Nor do either the trial court clerk or court reporter have any duty

to provide us with that relevant data. The burden lies with the relator (i.e., Natural Gas

here) to present us with a record sufficient to illustrate its entitlement to relief. In re Rose,

No. 04-18-00054-CV, 2018 Tex. App. LEXIS 1038, at *2 (Tex. App.—San Antonio Feb.

7, 2018, orig. proceeding) (per curiam) (mem. op.); In re Fox, 141 S.W.3d 795, 796-97

(Tex. App.—Amarillo 2004, orig. proceeding). In other words, the appendix and the items




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therein serve as the record upon which we act, and the relator takes the place of the trial

court clerk and reporter in providing us that record.

       Just as a clerk and reporter are to certify to the accuracy and authenticity of the

record they supply us, so too is the relator. Thus, the copy of the 1) order or document

complained of and 2) hearing transcript and exhibits admitted must depict the actual order

or document issued by the trial court and the actual content of the hearing. Without true

and correct copies of orders or hearing transcripts depicting what the trial court actually

ordered or heard, we can hardly assess whether it abused its discretion in a way requiring

our intervention. See In re Approximately $61,083.00, No. 14-13-01059-CV, 2014 Tex.

App. LEXIS 2421, at *7 (Tex. App.—Houston [14th Dist.] Mar. 4, 2014, orig. proceeding)

(per curiam) (mem. op.) (stating that “[w]ithout 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”). And, the burden lies with the relator to establish the authenticity of those

items. A relator or someone on its behalf simply declaring that the items are nothing more

than true copies of matters found in their own files does not establish the authenticity of

what the trial court ruled. Nor does it establish that the evidence within the transcript is

the evidence heard by the court prior to ruling. Again, orders, documents, and transcripts

must be either certified or sworn to copies of the originals. See In re Butler, 270 S.W.3d

757, 758-59 (Tex. App.—Dallas 2008, orig. proceeding) (holding that an affiant attesting

that “‘[t]he documents contained in the attached Record and attached Appendix to the

Relators’ Petition for Writ of Mandamus are to my knowledge true and correct copies of

the original documents’“ was insufficient to satisfy the obligation to provide sworn copies).



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       Natural Gas has not carried its burden to provide us with a record sufficient to show

its entitlement to relief given the wording within the “declaration.” See In re Taylor, No.

07-14-00010-CV, 2014 Tex. App. LEXIS 2381, at *3 (Tex. App.—Amarillo Feb. 28, 2014,

orig. proceeding) (mem. op.) (holding that the relator failed to comply with Rule

52.3(k)(1)(A) where he “include[d] a file-stamped copy of the order denying his appellate

counsel’s motion to withdraw, but [the] order [was] neither certified nor sworn to by

Taylor”); In re Fox, 141 S.W.3d at 796-97 (holding that because the document was neither

certified nor sworn to, the relator failed to comply with Rule 52.3); see also In re

Approximately $61,083.00, 2014 Tex. App. LEXIS 2421, at *5-6 (holding that “[a]lthough

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”

which left the reviewing court with an insufficient record to assess the complaint); In re

Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding) (noting the

relator’s burden to include “a properly authenticated transcript” of any relevant testimony

and exhibits). Thus, we deny, without prejudice, the petition for writ of mandamus filed

by Natural Gas.

                                                                   Per Curiam




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