Opinion issued June 21, 2007
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-00467-CR
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IN RE JOHN PATRICK WINTERS, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator John Patrick Winters requests that this Court compel respondent to make ruling on relator's motion for nunc pro tunc. Relator contends that he is entitled to jail time credit that he demanded from respondent and that respondent refused.
We deny the petition for writ of mandamus. We first observe that the granting of credit for jail time has historically been accomplished by post-conviction writ of habeas corpus. See Tex. Code Crim. P. Ann. art. 11.07 (Vernon 2006); Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998).
In addition, 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 Justices Taft, Jennings, and Keyes.