In re William Joseph Horton--Appeal from 54th District Court of McLennan County

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IN THE TENTH COURT OF APPEALS No. 10-10-00281-CR IN RE WILLIAM JOSEPH HORTON Original Proceeding MEMORANDUM OPINION William Joseph Horton seeks a writ of mandamus compelling Respondent, the Honorable Matt Johnson, Judge of the 54th District Court of McLennan County, to send a copy of the judgment and sentence in his case to the Texas Department of Criminal Justice and to award him credit for time served. We will deny Horton 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. In We apply Rule of Appellate Procedure 2 and disregard Horton s failure to include a proper certification in his mandamus petition. See TEX. R. APP. P. 2, 52.3(j). 1 re Smith, No. 01-10-00030-CR, 2010 WL 2723145, at *1 (Tex. App. Houston [1st Dist.] July 2, 2010, orig. proceeding) (per curiam) (not designated for publication); accord In re State, 304 S.W.3d 581, 583 (Tex. App. El Paso 2010, orig. proceeding); In re Chu, 134 S.W.3d 459, 467 (Tex. App. Waco 2004, orig. proceeding). Here, the mandamus record contains nothing to indicate that Horton has requested Respondent to send a copy of the judgment and sentence to TDCJ or has notified Respondent that he has not been awarded credit for all creditable time served. Because Horton has not made a demand for performance, we deny his mandamus petition. Id. FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed August 11, 2010 Do not publish [OT06] In re Horton Page 2

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