in Re Davis Lee Cormier

Opinion

Opinion issued August 8, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-00761-CV

IN RE DAVID LEE CORMIER, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator requests that this Court compel respondent ⁽¹⁾ to rule on relator's motion for a nunc pro tunc order granting him additional time credit in trial court cause number 841482.

We deny the petition for writ of mandamus. We first observe that the granting of credit for jail time has historically been accomplished by post-conviction writ of habeas corpus. See Tex. Code Crim. P. Ann. art. 11.07 (Vernon 1977 & Supp. 1999); Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998).

In addition, 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 the 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 Chief Justice Schneider, and Justices Nuchia and Radack.

Do not publish.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

1.

Respondent is the Honorable Belinda Hill, Judge, 230th District Court, Harris County.