                                   NO. 07-09-0265-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                   DECEMBER 8, 2009

                          ______________________________


                           IN RE RANDY LACKEY, RELATOR

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       MEMORANDUM OPINION ON RELATOR’S MOTION FOR REHEARING


       By this original proceeding, Relator, Randy Lackey, an inmate currently incarcerated

in the Institutional Division of the Texas Department of Criminal Justice, proceeding pro se

and in forma pauperis, sought a writ of mandamus to compel the Honorable Gordon

Green, Judge of the 287th District Court of Bailey County, to “consider and rule on his brief

and motions filed after April 5, 2004, and to proceed to trial and or final judgment.” By a

memorandum opinion dated October 1, 2009, addressing Relator’s request that we compel

the trial court to proceed to trial, we denied the relief requested. Relator filed a timely

motion for rehearing, wherein he requested this Court clarify its ruling with respect to his

request that we compel the trial court to consider and rule on his motion to reinstate his

previously abated civil cause of action in Cause Number 7764.
       After receiving Relator’s motion for rehearing, by letter dated November 6, 2009, we

requested the trial court and the real party in interest to file a response to that motion.

Thereafter, we received a Supplemental Clerk’s Record containing three documents filed

in Cause Number 7764: (1) Order for Reinstatement, (2) Order Setting Hearing, and (3)

Order for Teleconference with Prisoner, all dated November 17, 2009.


       To show entitlement to mandamus relief, a relator must satisfy three requirements:

(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). Because the trial court has now acted,

Relator would not be entitled to the relief requested. Therefore, Relator’s motion for

rehearing is denied.



                                                 Patrick A. Pirtle
                                                     Justice




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