                                     NO. 07-07-0428-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    OCTOBER 19, 2007

                           ______________________________


                                In re ROCKY WADE SMITH,

                                                               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 Rocky Wade Smith for a writ of

mandamus. He requests that we order the “Cottle County District Court Judge to perform

his ministerial duties . . . and credit [him] with all time served against his sentence for time

spent in custody under said cause, . . . .” We deny the application for the reasons which

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 Smith’s request to the trial

court asking for jail credit while his charge was pending. No such document appears in
Smith’s appendix. And, that Smith may be acting pro se does not relieve him of complying

with the rules of procedure. Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.–Amarillo

1998, pet. denied).

          Second, nothing of record indicates that Smith’s request for credit for time served

during the pendency of his case was ever 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 Smith 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, the record fails to show

that Smith had made a request to the trial court regarding this jail time credit. Whether the

trial court was ever made aware of it is unknown. Lacking that information, we cannot

simply assume that the district court knew of its supposed duty to act and neglected to

perform it. Thus, Smith 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.

                                                   Brian Quinn
                                                   Chief Justice




                                               2
3
