                                    NO. 07-03-0366-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    AUGUST 13, 2003

                          ______________________________


                 IN RE RICHARD VAUGHN COSTON, SR., RELATOR
                       _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Relator Richard Vaughn Coston, Sr., seeks a writ of mandamus ordering

respondent, the Honorable Tom Neely, Judge of the 46th District Court of Wilbarger

County, to set, hear and rule on pending motions, requests and an attorney’s affidavit. We

deny the petition.


       On August 7, 2003, relator filed with the clerk of this court pleadings entitled Motion

for Leave of Court to File an Original Petition for the Writ of Mandamus and a Petition for

Writ of Mandamus. In the pleadings, which we construe together as a petition for writ of

mandamus, see TEX . R. APP. P. 52.1, 52.3, relator alleges that Judge Neely has

established a protracted history of failing to provide settings, hold hearings, make rulings
or enter appealable orders on motions and documents filed by relator. Relator lists in his

pleadings several requests made for actions to be taken by different persons and officials.


       In support of the petition for writ of mandamus, relator attached copies of what he

labels as “stipulated documents” addressed to various clerks, attorneys, and the Court of

Criminal Appeals. None of the documents are certified or verified as correct. No other

document or record of proceedings is attached to or furnished in support of the petition.


       When petition for writ of mandamus is made, 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

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 matter

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


       Relators seeking issuance of a writ of mandamus must satisfy three requirements

to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance;

and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). A court is

not required to consider a motion not called to its attention. Metzger v. Sebek, 892 S.W.2d

20, 49 (Tex.App.--Houston[1st Dist.] 1994, writ denied).




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      Relator’s petition contains only allegations. Certified, sworn copies of motions and

correspondence referenced in the petition are not attached or furnished, nor is any other

document or transcript. Nor has relator shown a demand for performance of a ministerial

duty made to respondent. 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
                                                       Chief Justice




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