in Re: John Gray ( 2002 )

Opinion issued August 15, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00787-CV

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IN RE JOHN GRAY, Relator

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Original Proceeding on Petition for Writ of Mandamus

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MEMORANDUM OPINION

Relator requests that this Court compel respondents ⁽¹⁾ to communicate with him and rule on motions he filed in the trial court in cause number 481656. Relator was convicted in cause number 481656 of indecency with a child by exposure and was sentenced to 27 years confinement on February 17, 1988.

Relator contends that he filed a motion for DNA testing and a motion to compel the Texas Department of Criminal Justice to comply with the original punishment assessed. Relator acknowledges that Judge Hill appointed counsel to represent him in pursuing the motion for DNA testing. See Tex. Code Crim. P. Ann. art. 64.01(c) (Vernon Supp. 2002).

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, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). Relator has not provided us with a record that shows that he made any request of the respondent to perform a nondiscretionary act that respondent refused.

The petition for writ of mandamus is therefore denied.

It is so ORDERED.  

PER CURIAM

Panel consists of Chief Justice Schneider, and Justices Nuchia and Radack.

Do not publish. Tex. R. App. P. 47.

1.

Respondents are the Honorable Belinda Hill, judge, 230th District Court, Harris County, and A. Gunter, the deputy clerk assigned to that court.