----------- IN RE: DAVID SALAZAR (2010)

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.

FOOTNOTES

FN1. 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..  FN1. 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.

PER CURIAM