in Re: Alfredo Gallardo, Jr.

• Court: Court of Appeals of Texas
• Decided: October 17, 2002
• Docket: 01-02-01061-CV
• Status: Published

Opinion

Opinion issued October 17, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-01061-CV

IN RE ALFREDO GALLARDO, JR., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator filed a petition for writ of mandamus requesting that this Court compel respondent ⁽¹⁾ to enforce her order requiring relator's counsel to file an affidavit in connection with a post-conviction writ of habeas corpus. We deny the petition.

There are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Relator has not provided us with a record that shows that he made any request of respondent to perform a nondiscretionary act that respondent refused.

The petition for writ of mandamus is therefore denied.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Taft, Alcala, and Price. ⁽²⁾

Do not publish. Tex. R. App. P. 47.

1.

Respondent is the Honorable Susan Brown, Judge, 185th District Court, Harris County.

2.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.