The Court received Appellant's Writ of mandamus and noted that Appellant's supporting documents included in the appendix were not properly certified or sworn to, as required by Tex. R. App. P Rule 52.3(k) and 52.7(a)(1) and the relator had 21 days to comply with these rules or the writ of mandamus may be summarily denied.
Appellant's response was that he "swore that all material evidence and information is true and correct and that all documents that is material to this matter is before the courts and is filed in the underline procedure"
Is this a sufficient response to comply with the court's request? The relator is in prison and now we have received a letter requesting a response from the Court of Appeals. The letter also reads on the last sentence, "Chief Justice Gray would deny the petition." First time I have seen that in a letter from court requesting response. This whole thing is in response to defendant's request for post conviction dna testing. State responded, but judge has never formally ruled denying his motion. (never any dna collected to test) As a practical matter should I ask the judge to make a formal ruling and attach this to our response.
Any help would be appreciated.
It's been my experience that appellate courts accord a great deal of leniency to prison inmates in complying the the TRAPs. This habit of leniency seems consistent with most Texas justices' philosophies of ensuring prisoners receive adequate procedural due process. And the Court's letter seems to imply two of the three justices think the inmate's supplemental response is sufficient.
My advice: Respond on the merits and ignore whether or not the supplemental swearing match satisfies the letter of the TRAPs. The Court is probably already prepared to bounce the prisoner's application on substantive grounds -- and it sounds like you are prepared to supply them with that ammo.
Your proposed solution of having the trial judge issue a written order of denial (based on lack of evidence on which to perform DNA testing) and attaching that ruling to your written response is best. Additionally, I would ask the district clerk to send a clerk's record containing the denial order. (The justices will want to see the order attached to your response; the staff attorneys will appreciate having a supplemental clerk's record.)
Thanks for the information and advice.
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