In Re: Antonio Sepeda--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

In Re: ANTONIO SEPEDA,

Relator.

No. 08-04-00129-CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

Relator Antonio Sepeda has filed an application for writ of mandamus, complaining that the trial court has refused to assist him in collecting a civil judgment.

To obtain a writ of mandamus, a relator must provide this Court with "a 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). In his application, Sepeda states, under penalty of perjury, that he is unable to provide copies of relevant documents because they were lost during institutional lock downs.

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, 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 Sepeda has not provided us with certified or sworn copies of any documents in which he requested the trial court's assistance in enforcing the judgment, we are unable to determine that the trial court has abused its discretion by failing to rule.

We therefore deny the petition for writ of mandamus. This ruling does not preclude Sepeda from filing a motion to enforce the judgment in the trial court or from filing another application for mandamus relief in this Court if the trial court fails to rule.

August 25, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

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