In re Chavez

A trial court cannot be found to have abused its discretion until the complainant establishes that the court had a legal duty to perform a non-discretionary act, was asked to perform the act, and failed or refused to do so.

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ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

Pending before the court is the petition of Lawrence Trinidad Chavez for a writ of mandamus. Chavez requests that we order the Hon. David R. Gleason, 47th Judicial District, Potter County, to “schedule and hold a hearing on the properly filed Motion for a Free Copy of the Trial/Appellate Record from cause no [sic] 9445-A in the 47th District Court . . . ” 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. *fn1 Tex. R. App. Proc. 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 the motion allegedly filed and the request for a free copy of the trial and appellate record. None was provided to us, however, via appendix or otherwise. Thus, it cannot be said that Chavez complied with the rules which he now seeks to enforce. *fn2

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In re Chavez

A trial court cannot be found to have abused its discretion until the complainant establishes that the court had a legal duty to perform a non-discretionary act, was asked to perform the act, and failed or refused to do so.

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