Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the Criminal District Court No. 5
Dallas County, Texas Trial Court Cause Nos. F91-04916-WL
Justices Myers, Molberg, and Nowell
original proceeding, relator Andrew Jackson petitions the
Court for a writ of mandamus compelling the trial court to
vacate its decision denying relator's request for
appointment of counsel to assist him in proceedings for
post-conviction DNA testing. We deny relief.
we observe relator's petition is deficient under the
rules of appellate procedure. A petition seeking mandamus
relief must contain a certification stating that the relator
"has reviewed the petition and concluded 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's petition bears an inmate
declaration stating relator does "verify and declare
under penalty of perjury the foregoing statements are true
and correct." Thus, relator's certification does not
comply with rule 52.3(j). See id.; In re
Butler, 270 S.W.3d 757, 758 (Tex. App.-Dallas 2008,
52.3(k)(1)(A) requires the relator to file an appendix with
his petition that contains "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)(A). Rule
52.7(a)(1) requires the relator to file with the petition
"a certified or sworn copy of every document that is
material to the relator's claim for relief that was filed
in any underlying proceeding." Tex.R.App.P. 52.7(a)(1).
has attached copies of documents to his petition, but the
documents are not certified or sworn copies and thus not
properly authenticated under the rules of appellate
procedure. Documents become sworn copies when they are
attached to an affidavit or to an unsworn declaration
conforming to section 132.001 of the Texas Government Code.
See Tex. Gov't Code Ann. § 132.001;
Butler, 270 S.W.3d at 759; In re Taylor, 28
S.W.3d 240, 245, (Tex. App.-Waco 2000, orig. proceeding),
disapproved on other grounds by In re Z.L.T., 124
S.W.3d 163, 166 (Tex. 2003). The affidavit or unsworn
declaration must affirmatively show it is based on the
affiant's personal knowledge. Butler, 270 S.W.3d
at 759. The affidavit or unsworn declaration is insufficient
unless the statements in it are direct and unequivocal and
perjury can be assigned to them. Id. To comply with
the rules, the affidavit or unsworn declaration must state
the affiant has personal knowledge that the copies of the
documents in the appendix are correct copies of the
party seeking relief, the relator has the burden of providing
the Court with a sufficient mandamus record to establish his
right to mandamus relief. Walker v. Packer, 827
S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Without a
properly authenticated appendix, relator has not provided a
sufficient record to show his entitlement to mandamus relief.
See Butler, 270 S.W.3d at 759.
addition to the deficiencies in relator's petition,
relator also requests relief beyond the Court's power to
grant. To establish a right to mandamus relief, relator must
show that the trial court violated a ministerial duty and
there is no adequate remedy at law. In re State ex rel.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.
proceeding). Although relator contends the trial court has a
ministerial duty to appoint counsel to represent him, the DNA
testing statute requires the trial court to appoint counsel
only if the trial court determines the applicant is indigent
and it finds reasonable grounds for filing a motion seeking
testing. See Tex. Code Crim. Proc. Ann. art.
64.01(c). Because findings of indigence and reasonable
grounds are prerequisites for the appointment of counsel,
other appellate courts considering this issue have determined
that the appointment of counsel in post-conviction DNA
appeals is discretionary and thus not purely a ministerial
act. See In re Marshall, 577 S.W.3d 581, 583 (Tex.
App.-Houston [14th Dist.] 2019, orig. proceeding); In re
Ludwig, 162 S.W.3d 454, 454-55 (Tex. App.-Waco 2005,
relator has not filed a properly authenticated petition for
writ of mandamus and an authenticated appendix of supporting
documents, and because the trial court's determination
not to appoint counsel involves an exercise of the trial
court's discretion, we conclude relator has not
established the trial court violated a ministerial ...