in Re John Patrick Winters

Opinion

Opinion issued June 21, 2007

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00467-CR

IN RE JOHN PATRICK WINTERS, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator John Patrick Winters requests that this Court compel respondent to make ruling on relator's motion for nunc pro tunc. Relator contends that he is entitled to jail time credit that he demanded from respondent and that respondent refused.

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 2006); 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 Justices Taft, Jennings, and Keyes.