                                    NO. 07-12-0091-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                     MARCH 29, 2012

                          ______________________________


                            In re BARRY DWAYNE MINNFEE,

                                                                     Relator
                          ______________________________

                                Original Proceeding
                          ______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Pending before the court is Barry Dwayne Minnfee’s application for a writ of

mandamus. Though much of it is unintelligible, he does state that he filed a motion with

the “251st District Judge Ana Estevez,” requesting a “Judgment Nunc Pro Tunc”

regarding “time credit dispute resolution.” Thus, we construe his motion as a request for

the recalculation of his prison term through the application of jail time credit, and in so

interpreting the petition, we deny it for the following reasons.

       We note that nothing of record indicates that the document was brought to the

attention of the district court.   Simply put, before mandamus relief may issue, the

petitioner must establish that the district court 1) had a legal duty to perform a non-

discretionary act, 2) was asked to perform the act, and 3) failed or refused to do it.
O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62

S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). Given this, it is

encumbent upon relator to illustrate that the district court received and was aware of his

request. This is so because a court cannot be faulted for doing nothing when it is or

was unaware of the need to act. Here, relator states that the trial court “refuse[d] to

grant the requested credits.” However, he has not included in an appendix any order

representing the trial court’s refusal or any action taken by the trial court or that he has

brought the motion to the trial court’s attention. Thus, relator has not fulfilled his burden

to illustrate that the trial court refused to act.

       Accordingly, the application for writ of mandamus pending before this court is

denied.

                                                     Per Curiam




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