                                   NO. 07-11-0236-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JUNE 21, 2011
                          ______________________________


                           In re BARRY DWAYNE MINNFEE,

                                                      Relator
                        _________________________________

              ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
                      _______________________________

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

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

mandamus.     He requests that we direct “[the] District Court Judge to act on [sic]

Intentional Tort May 23rd (2011).” We deny the application for the reasons that follow.

       First, rules of procedure obligate one seeking mandamus relief to accompany his

petition with an appendix. TEX. R. APP. P. 52.3(j). The latter must include, among other

things, a certified or sworn copy of the document showing the matter complained of. In

this case, the document showing the matter complained of would be the document filed

with the district court upon which it is supposed to act. This Minnfee failed to do.

       Second, 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 Minnfee 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, Minnfee fails to state in his petition that he has

made the trial court aware of his request. Lacking that information, we cannot simply

assume that the district court knew of its duty to act and neglected to perform it. Thus,

Minnfee 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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