NO. 07-05-0002-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 13, 2005

______________________________ IN RE: R. WAYNE J OHNSON, R ELATOR

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION
Relator R. Wa y ne Johnson, a prisoner in the custody of the Tex as Department of Criminal Justice, seeks a writ of m andamus o rdering r esponden t, the Hon orable R obert Kinkaid, Ju dge of the 64 th District Court of Hale County, to rescind an order dismissin g relator’s petition in trial court Cause Number A33742-041 1. We deny the petition.
In his petition for writ of mandamus, rel ator alleg es that respondent wrongfully entered an order

of dismi ssal of re lator’s l awsuit; t he order is not fi nal f or purposes of appeal; and rescinding of the order is a ministerial duty on behalf of the trial court. Relator attached a copyof the or der of di smissal. No other document

or record of proceedings is attached to or furn ished in support o f the peti tion see king man damus.
A writ of mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discre tion or th e violation of a duty imposed by law when there is no other-2-

adequatereme dy by law

. S ee Canadian Helicopters Ltd. v. Wittig , 876 SW2d 304, 305 (Tex. 1994). It is the relator’s burden to show entitlement to the relie f being requested, see generally Johnson v. Fourth District Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding), and that relator has no adequate remedy at l a w. See In re Nolo Press/FolkLawInc. , 991 S.W. 2d 768, 7 76 (Tex. 1999). In evaluating whether the trial court abused its disc retion in making t he chall enged ru ling, a reviewi ng court must focus on the evidence and matte rs before the trial court at the time it made the chal lenged r uling. See In re Bristol-Meyers Squibb Co. , 975 S.W.2d 601, 605 (Tex. 1998). It is relator’s burden to file wi th the pe tition a certified sworn co py of eve ry document that is material to relator’s claim for rel ief and that was filed in any underlyin g proceeding, and a properly authenticated transcript of a ny relevant testimony from any underlying proceeding includ in g any exhibits offered in evidence or a statemen t th at no testimony was adduced in connecti on with t he matter complain ed of. T EX
. R. A PP . P. 52.7( a).
A certi fied, s worn copy of relator’s petition in the trial court is not attached or fu rnished, nor is any other document or transcript other than the order of dismissal

. Without such documents, we cannot determine if, as relator asserts, the order is not a final order for purpo ses of ap peal, or what evi dence or record wa s befo re the trial court when the order was entered

. Accordingly, relator has not presented a record which shows entitleme nt to the relief so ught. Moreover, assuming that relator’s assertion is correct and the order is not final for purposes of appea l, see Lehmann v. Har-Con Corp. , 39 S.W.3 d 191, 20 5 (Tex. 2 001), then relator has an a dequate remedy by appeal when a final order i s entered. If, on the other-3-

hand, the order

is final for purposes of appeal because it disposed of all issues and parties, then relator’s right of appeal from the dismissal affords (or afforded) an adequate legal remedy. See Walker v. Packer , 827 S.W. 2d 833, 8 42 (Tex. 1992). The petition for writ of mandamus is denied.

Phil Johnson Chief Justice