

Opinion issued June 18, 2010 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00402-CR
———————————
IN RE DAVID SALAZAR, Relator

 

 

Original Proceeding on Petition for Writ of Mandamus 
 

 
MEMORANDUM OPINION
          Relator,
David Salazar, has filed a petition for writ of mandamus that requests this
Court order the 240th District Court to rule on his motion to obtain trial
records.[1]  Relator states that he needs the records
requested by his motion for a pending case in the Fifth Circuit Court of
Appeals.  We deny the petition for writ
of mandamus. 
First, relator’s petition does not meet the requirements of
the Texas Rules of Appellate Procedure. 
For example, it does not included an appendix, and it does not certify
that a copy was served on respondent.  See Tex.
R. App. P. 9.5, 52.3(k).

Moreover, 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 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).  Relator has not provided this Court with a
record that demonstrates that he made any request of the respondent to perform
a nondiscretionary act that respondent refused. 
See id. at p. 426.
Therefore, the petition
for writ of mandamus is denied.  
Relator has also filed
a motion for leave to file his petition for writ of mandamus.  The Texas Rules of Appellate Procedure no
longer require a motion for leave to file. 
Tex. R. App. P. 52.1.   We deny the motion for leave to file.
PER CURIAM
Panel
consists of  Chief Justice Radack, and
Justices Bland and Sharp.
Do
not publish.   Tex. R. App. P. 47.2(b).




[1]
          Relator
is seeking records related to trial court cause numbers 43458, 43459, and
43461.  Relator states in his petition
that the cases were assigned to the 240th District Court of Fort Bend County,
Texas.  The presiding judge of the 240th
District Court is the Honorable Thomas R. Culver, III.  Relator’s petition does not contain a
certificate of service.


