In Re: Antonio Sepeda--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-03-00196-CV

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IN RE: ANTONIO SEPEDA ) AN ORIGINAL PROCEEDING

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) IN MANDAMUS

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MEMORANDUM OPINION ON WRIT OF MANDAMUS

Prisoner Antonio Sepeda (ARelator@) seeks a writ of mandamus compelling the trial court to rule on his motion to enforce a judgment. For the reasons that follow, we deny the petition.

To obtain a writ of mandamus, a relator must provide this Court with Aa certified or sworn copy of any order complained of, or any other document showing the matter complained of.@ Tex.R.App.P. 52.3(j)(1)(A). Prisoners may comply with this requirement by declaring under penalty of perjury that the documents are true copies. See Tex.Civ.Prac.&Rem.Code Ann. ' 132.001(a)(Vernon 1997); In re Taylor, 28 S.W.3d 240, 245 (Tex. App.--Waco 2000, orig. proceeding).

Relator has provided this Court with copies of several documents and he has declared that they are true copies in accordance with Section 132.001(a) of the Civil Practice and Remedies Code. The documents are: (1) a letter to the district court administrator requesting the status of a writ of garnishment; (2) a letter to the district clerk informing her of the address to which the writ of garnishment should be mailed; (3) a letter to Relator from the Tarrant County Courts at Law Supervisor, informing Relator that Tarrant County does not have jurisdiction to issue a writ of garnishment in this case; (4) a motion for a bill of discovery filed under Texas Rule of Civil Procedure 737; (5) a letter to the district clerk seeking the price for copies of certain documents in his case file; and (6) a letter to Relator from an attorney declining to take his case.

Relator has not, however, provided a copy of the motion to enforce the judgment. He declares under penalty of perjury that his copy of that motion was lost in an Ainstitutional lockdown@ and requests that we accept his declaration that the motion was filed. Relator=s declaration does not include the title of the motion or the date it was filed with the trial court.

Mandamus will only lie to correct a clear abuse of discretion when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)(orig. proceeding). To establish that the trial court abused its discretion by failing to rule on a motion, the relator must show that the trial court: (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Cash, 99 S.W.3d 286, 288 (Tex.App.--Texarkana 2003, orig. proceeding). Because Relator has not provided us with a copy of the motion to enforce or with the date the motion was filed, we are simply unable to determine that the trial court has abused its discretion by failing to rule on the motion.

We therefore deny the petition for writ of mandamus. This ruling does not preclude Relator from filing another motion to enforce the judgment in the trial court.

May 29, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.