in Re: Owen Beal

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 01-02-00545-CV
• Status: Published

Opinion

Opinion issued June 13, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-00545-CV

IN RE OWEN BEAL, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator requests that this Court compel respondent, judge of the 338th District Court, Harris County, Texas, to rule on his motion for entry of a judgment nunc pro tunc in cause numbers 786811 and 786812. Relator asserts that he filed such a motion in the district court, and that a copy of same is attached to his petition for writ of mandamus. No such document is attached to the petition filed in this Court.

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.

Moreover, the petition does not include a certificate of service. See Tex. R. App. P. 9.5.

The petition for writ of mandamus is therefore denied.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Hedges, Jennings, and Price. ⁽¹⁾

Do not publish.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

1.

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