NO. 07-12-0091-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 29, 2012
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In re BARRY DWAYNE MINNFEE,
Relator
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Original Proceeding
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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pending before the court is Barry Dwayne Minnfee’s application for a writ of
mandamus. Though much of it is unintelligible, he does state that he filed a motion with
the “251st District Judge Ana Estevez,” requesting a “Judgment Nunc Pro Tunc”
regarding “time credit dispute resolution.” Thus, we construe his motion as a request for
the recalculation of his prison term through the application of jail time credit, and in so
interpreting the petition, we deny it for the following reasons.
We note that nothing of record indicates that the document was brought to the
attention of the district court. Simply put, before mandamus relief may issue, the
petitioner must establish that the district court 1) had a legal duty to perform a non-
discretionary act, 2) was asked to perform the act, and 3) failed or refused to do it.
O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62
S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). Given this, it is
encumbent upon relator to illustrate that the district court received and was aware of his
request. This is so because a court cannot be faulted for doing nothing when it is or
was unaware of the need to act. Here, relator states that the trial court “refuse[d] to
grant the requested credits.” However, he has not included in an appendix any order
representing the trial court’s refusal or any action taken by the trial court or that he has
brought the motion to the trial court’s attention. Thus, relator has not fulfilled his burden
to illustrate that the trial court refused to act.
Accordingly, the application for writ of mandamus pending before this court is
denied.
Per Curiam
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