In re James C. Fuller--Appeal from County Court at Law of Walker County

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IN THE TENTH COURT OF APPEALS No. 10-10-00299-CV IN RE JAMES C. FULLER Original Proceeding MEMORANDUM OPINION James C. Fuller seeks a writ of mandamus compelling Respondent, the Honorable Barbara Hale, Judge of the County Court at Law of Walker County, to render a final judgment in his lawsuit. See Fuller v. Moya, No. 10-09-00294-CV, 2009 Tex. App. LEXIS 9596 (Tex. App. Waco Dec. 16, 2009, no pet.) (dismissing Fuller s appeal for lack of final judgment). We will deny Fuller s mandamus petition.1 There are three prerequisites for the granting of mandamus relief: (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. We apply Rule of Appellate Procedure 2 and disregard numerous deficiencies in Fuller s mandamus petition. See TEX. R. APP. P. 2, 52.3(j). 1 O Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Thirty-Four Gambling Devices, 304 S.W.3d 503, 505 (Tex. App. Amarillo 2009, orig. proceeding). Here, Fuller has not provided a certified or sworn mandamus record indicating that he has requested Respondent to render a final judgment in his suit. See TEX. R. APP. P. 52.7(a)(1) (relator must file with mandamus petition a certified or sworn copy of every document that is material to the relator s claim for relief and that was filed in any underlying proceeding ). Because Fuller has not established that he made a demand for performance, we deny his mandamus petition. See O Connor, 837 S.W.2d at 97; Thirty-Four Gambling Devices, 304 S.W.3d at 505. FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed August 25, 2010 [OT06] In re Fuller Page 2

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