in Re William Joseph Horton

• Court: Court of Appeals of Texas
• Decided: August 11, 2010
• Docket: 10-10-00281-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00281-CR

IN RE WILLIAM JOSEPH HORTON

Original Proceeding

MEMORANDUM OPINION

William Joseph Horton seeks a writ of mandamus compelling Respondent, the

Honorable Matt Johnson, Judge of the 54th District Court of McLennan County, to send

a copy of the judgment and sentence in his case to the Texas Department of Criminal

Justice and to award him credit for time served. We will deny Horton’s mandamus

petition.1

There are three prerequisites for the granting of mandamus relief: (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. In

1 We apply Rule of Appellate Procedure 2 and disregard Horton’s failure to include a proper certification in his mandamus petition. See TEX. R. APP. P. 2, 52.3(j). re Smith, No. 01-10-00030-CR, 2010 WL 2723145, at *1 (Tex. App.—Houston [1st Dist.]

July 2, 2010, orig. proceeding) (per curiam) (not designated for publication); accord In re

State, 304 S.W.3d 581, 583 (Tex. App.—El Paso 2010, orig. proceeding); In re Chu, 134

S.W.3d 459, 467 (Tex. App.—Waco 2004, orig. proceeding).

Here, the mandamus record contains nothing to indicate that Horton has

requested Respondent to send a copy of the judgment and sentence to TDCJ or has

notified Respondent that he has not been awarded credit for all creditable time served.

Because Horton has not made a demand for performance, we deny his

mandamus petition. Id.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed August 11, 2010 Do not publish [OT06]

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