Happy New Year, indeed. In two opinions issued by the Dallas Court of Appeals on New Year's Eve, the court denied two petitions for writ of mandamus because the petitions did not comply with Texas Rule of Appellate Procedure 53.2(j), which requires that "[t]he person filing the petition [] certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record." In In re Sky Capital Group, Ltd., No. 05-09-01506-CV and In re Weaver & Tidwell, LLP, 05-09-01539-CV, the court denied petitions for writ of mandamus (one arising out of an issue of misjoinder and one arising out of the denial of a motion to compel arbitration, respectively) for this very reason, and in each citing its own prior opinion in In re Butler, 270 S.W.3d 757, 758 (Tex. App.-Dallas 2008, orig. proceeding), as support.
As In re Butler points out, Rule 53.2(j) replaced the old practice in which the lawyer had to verify the petition. Now, in my experience, it simply requires a statement signed by the lawyer that says exactly what the Rule says it should say. And, prior to my review of these cases and In re Butler, I would have thought the failure to comply would have simply resulted in the petition being struck, with the option to re-file. Here, however, the failure to comply results in an outright denial of the petition, the only option being - presumably - a motion for rehearing. Not an enviable position to be in. So, beware. And, happy new year!
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