----------- IN RE: OSCAR JOSEPH (2010)

MEMORANDUM OPINION

Relator, Oscar Joseph, has filed a pro se petition for writ of mandamus, asking this Court to direct respondent ¹ to rule on relator's “motion to dismiss counsel.”   We deny the petition for writ of mandamus.

Relator's petition does not meet the requirements of the Texas Rules of Appellate Procedure.   See Tex.R.App. P. 9.5 (requiring that certified copy be served on respondent);  52.3(k) (requiring certified or sworn copy of any order complained of or any other document showing matter complained of).

In addition, to establish that the trial court abused its discretion by failing to rule, the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform that act, and (3) failed or refused to do so.  Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding).   Specifically, the relator must show that the trial court received the motion, was aware of it, and was asked to rule on the motion.  Id. Here, relator has not provided us with a record showing that the trial court received his motion, was aware of it, was asked to rule on it, and refused to rule.   See id.

Accordingly, we deny the petition for writ of mandamus.

FOOTNOTES

FN1. Respondent is The Honorable Mark Kent Ellis of the 351st District Court, Harris County, Texas..  FN1. Respondent is The Honorable Mark Kent Ellis of the 351st District Court, Harris County, Texas.

PER CURIAM