                                  NO. 07-03-0518-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  JANUARY 22, 2004

                         ______________________________


                          IN RE: HOLLIS POSEY, RELATOR


                       _________________________________

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


                               MEMORANDUM OPINION


       Relator Hollis Posey seeks a writ of mandamus ordering respondent, the Honorable

Abe Lopez, Judge of the 108th District Court of Potter County, to take action on a motion

filed by relator in cause number 44,635-E in the 108th District Court of Potter County. We

deny the petition.


       In his petition, relator alleges that he has filed a motion seeking a nunc pro tunc

order in the referenced trial court case. We are requested to order respondent to rule on

the motion seeking a nunc pro tunc order.
       In support of the petition for writ of mandamus, relator attached copies of (1) the

State’s Motion to Dismiss and the Order dismissing the referenced cause, (2) relator’s

Petition for Expunction, and (3) a letter to the Hale County District Clerk filing the petition

and requesting notification of any rulings on the motion. 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). The showing must, in

part, be by certified, sworn copy of every document that is material to the relator’s claim for

relief and which was filed in any underlying proceeding. See 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). Showing that a motion was filed with

the court clerk does not constitute proof that the motion was brought to the trial court’s

attention or presented to the trial court with a request for a ruling. See In re Chavez, 62

S.W.3d 225, 228 (Tex.App.--Amarillo 2001) (orig. proceeding).


       Relator’s petition does not demonstrate that his motion has been called to

respondent’s attention or presented to respondent for a ruling, nor does he present

certified, sworn copies of material documents. Relator has not presented a record which

shows entitlement to the relief sought.

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The petition for writ of mandamus is denied.




                                               Phil Johnson
                                               Chief Justice




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