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


                  No. 06-15-00034-CR




            IN RE: RANDY HENDERSON




             Original Mandamus Proceeding




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                         MEMORANDUM OPINION
        In the petition of the relator, Randy Henderson, seeking mandamus relief, he claims that

he filed a petition with the 202nd Judicial District Court of Bowie County, Texas, in October

2014, wherein he sought a judgment nunc pro tunc. Henderson’s petition in this Court alleges

that since more than sixty days have elapsed since the filing with no response, an unreasonable

delay has ensued. By his petition, Henderson asks this Court to issue a writ of mandamus to

“compel the Respondent [(the trial court)] to afford [him] the opportunity to be heard.” We read

Henderson’s request for relief to ask us to compel the trial court to rule on his motion for

judgment nunc pro tunc. 1

        We may grant a petition for writ of mandamus when the relator shows that the act sought

to be compelled is strictly ministerial in nature and that there is no adequate remedy at law to

redress the alleged harm. Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006)

(per curiam) (orig. proceeding). “In proper cases, mandamus may issue to compel a trial court to

act.” In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); see

also Eli Lily & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (per curiam) (orig.

proceeding) (trial court abuses discretion by refusing to conduct hearing and render decision on

motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App.—Houston [14th Dist.] 1990, orig.

proceeding) (mandamus appropriate remedy to require trial court to hold hearing and exercise




1
 We may, where appropriate, direct a trial court to rule on a motion after a reasonable time, but this Court cannot
instruct the trial court how to rule. In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig.
proceeding).
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discretion). Trial courts are not required to consider or rule on a motion unless the motion is

called to the court’s attention. Blakeney, 254 S.W.3d at 662.

        Henderson did not accompany his petition with a certified or sworn copy of the motion

that is the subject of his complaint, as is required by the Texas Rules of Appellate Procedure.

See TEX. R. APP. P. 52.3(k)(1)(A). The document he attached to the instant petition bears neither

a file stamp nor a certification from the trial court clerk. Henderson did include an unsworn

declaration, declaring under penalty of perjury that he had filed a motion for judgment nunc pro

tunc in the trial court “on or about October 16, 2014[,] . . . regarding a clerical error that

extended [his] sentence, adding another fifteen (15) year sentence without a judicial

proceeding.” 2 However, the statement fails to sufficiently establish that the purported motion

attached to the mandamus petition is the same, or a copy of the one, allegedly filed in the trial

court. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavit must set forth

sufficient “facts as would be admissible in evidence” to support the position of the applicant).

“Documents that are attached to a properly prepared affidavit are sworn copies.” In re Butler,

270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding).                         The affidavit “must

affirmatively show it is based on the personal knowledge of the affiant”; the affidavit “is

insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to

them.” Id. While Henderson represents that he filed a motion with the trial court, nothing in his



2
 “[A]n unsworn declaration may be used in lieu of a written sworn declaration, certification, oath, or affidavit
required by statute or required by a rule, order, or requirement adopted as provided by law.” TEX. CIV. PRAC. &
REM. CODE ANN. § 132.001(a) (West Supp. 2014).

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unsworn declaration establishes that the document he attached to his petition is a copy of the

document he claims to have filed in the trial court. Henderson has not attached a certified or

sworn copy of the motion “showing the matter complained of” to his petition for writ of

mandamus; as a result, he has failed to comply with Rule 52.3(k)(1)(A) of the Texas Rules of

Appellate Procedure. See TEX. R. APP. P. 52.3(k)(1)(A).

       In addition to this omission, Henderson has failed to prove in his petition that he brought

his motion to the attention of the trial court. “[M]andamus relief . . . must be predicated on an

adequate showing that a request for a ruling has been properly and adequately presented to the

trial court and that the court has declined to rule.” Blakeney, 254 S.W.3d at 661. Therefore, we

are unable to determine if this matter was brought to the trial court’s attention or whether the trial

court has had a reasonable time in which to rule on Henderson’s motion.

       It is the relator’s burden to provide this Court with a sufficient record to establish the

right to mandamus relief. See TEX. R. APP. P. 33.1(a), 52.3(k)(1)(A), 52.7(a)(1). Here, the

record is inadequate to grant mandamus relief.

       Accordingly, we deny Henderson’s petition for writ of mandamus.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:        March 9, 2015
Date Decided:          March 10, 2015

Do Not Publish



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