in Re: Adam Lopez, Relator

• Court: Court of Appeals of Texas
• Decided: December 6, 2002
• Docket: 07-02-00490-CV
• Status: Published

Opinion

NO. 07-02-0490-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 6, 2002

______________________________

IN RE ADAM LOPEZ

_________________________________

Before REAVIS and JOHNSON, JJ., and BOYD, S.J.1

Relator Adam Lopez seeks a writ of mandamus ordering respondent, the Honorable

Blair Cherry, Jr., Judge of the 72nd District Court of Lubbock County, to adjudicate a

Petition for Expunction. We deny the petition for writ of mandamus.

On November 25, 2002, Lopez filed with the clerk of this court a pleading seeking

issuance of writ of mandamus directed to respondent. Relator’s pleading alleges that he

filed a petition seeking expunction of records as to Cause Number 98-428290 in the 72nd

District Court of Lubbock County (“the subject cause”) and that respondent failed to act on

such petition. We are requested to direct respondent to act on the petition.

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. In support of the petition for writ of mandamus, relator attached a copy of his

Petition for Expunction of Records and a Motion to Dismiss and Order of Dismissal in the

subject cause. No other document or record of proceedings is attached to or furnished in

support of relator’s application for writ of mandamus.

Fundamental requirements of due process mandate an opportunity to be heard.

Creel v. District Atty. for Medina County, 818 S.W.2d 45, 46 (Tex. 1991). Thus, a district

court may be compelled via mandamus to consider and rule on a pending motion

presented to the court. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128

(Tex.Crim.App. 1987). Mandamus, however, will not issue to compel a particular result in

a discretionary decision on a motion. Id; White, 640 S.W.2d at 593-94.

Consideration of and ruling on a motion properly filed and pending before a trial

court are ministerial acts. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.

1992); White v. Reiter, 640 S.W.2d 586, 594, 596 (Tex.Crim.App.1982). Relators seeking

issuance of a writ of mandamus directing a trial court to take action in a proceeding must

satisfy three requirements to show entitlement to the writ: (1) a legal duty on behalf of the

trial court to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v.

Massey, 586 S.W.2d 843, 846 (Tex. 1979). Relators seeking issuance of a writ of

mandamus also must provide a sufficient record to establish entitlement to such relief.

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). It is the relator’s burden to show

entitlement to the relief being requested. See generally Johnson v. Fourth District Court

of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Relator must file with the

2 petition a certified sworn copy of every document that is material to relator’s claim for relief

and that was filed in any underlying proceeding, and a properly authenticated transcript

of any relevant testimony from any underlying proceeding including any exhibits offered

in evidence or a statement that no testimony was adduced in connection with the

complained of matter. TEX . R. APP . P. 52.7(a).

Relator’s petition contains only allegations. Those allegations do not assert that

relator presented his motion to respondent for action on the motion. Nor do the

attachments to relator’s petition for mandamus show that relator presented his trial court

petition or the matters in it to respondent with a request that respondent consider and act

on the matters. See State ex rel. Curry, 726 S.W.2d at 128. Accordingly, relator has not

presented a record which shows entitlement to the relief sought, or upon which we are

authorized to act.

The petition for writ of mandamus is denied.

Phil Johnson Justice

Do not publish.