1 John T. Boyd, Chi ef Justice (Ret.), Seventh Court of Ap peals, sitting by

assignment

. NO. 07-02-0490 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E DECEM BER 6, 2 002

______________________________ IN RE ADAM LOPEZ

_________________________________ Before REAVIS and JOHNSON, JJ., and BOYD, S.J. 1
Relator Adam Lopez seeks a writ of m andam us ord erin g re spo nde nt, theHon ora ble Bla ir Cherry, Jr., Judge of the 72nd District Court of Lubbock C ounty, to adj udicate a Petition for Expunction. W e deny the peti tion for writ ofmandam us. On Novem ber 25, 2002, Lopez filed w ith the clerk of this court a pleading seeking issuance of writ of m andam us directed to respondent. Relator’s pleading alleges that he filed a petition seeking expunction of recordsas to Cause Num ber 98-428290 in the 72nd Distri ctCourt of Lubbock County (“the subject cause”) and that respond ent fail ed to act on such petition. W e are requested to direct respondent to act on the petition.2

In support of th e pe titio n fo r w rit of m and am us, rela tor attach ed acop y of

his Petition for

Expu nction of Records and a M otion to Dismiss an d Order of Dism issal in the subject cause. No other docum ent or record of proceedings is attached to or furnished in support of relator’s application for writ of m andam us. Fundamental requirements of due proce ss mandate an opportunity t o be heard. Creel v. District Atty. for M edina County , 818 S.W .2d 45, 46 (Tex. 1991). Thus, a distr ict court ma y be com pelled via mandam us to consider and rule on a pending m otion presented to the court. See State ex rel. Curry v. Gray, 726 S.W.2d 1 25, 12 8 (Tex.Crim .App. 1987). Mandam us, however, will not issue to com pel a particularres ult in a discretionary decision on a mot ion. Id ; W hite , 640 S.W.2d at 593-94. Consideration of and ruling on a mo tion properly filed and pending before a trial court are m iniste ria l acts. See Eli L illy a nd C o. v . M ars hall , 8 29 S.W .2 d 1 57 , 1 58 (T ex. 1992); W hite v. Reiter , 640 S.W.2d 586, 594, 596 (Tex.Crim .App.1982). Relators seeking issuance of a writ of m andam us directing a trial court to take action in a proceed ing must satisfythree requirements to show entitlement to t he writ: (1) a legal duty on behalf of the trial court to p erform ; (2) a dem and for perform ance; and (3) a refusal to act. Stoner v. Massey , 586 S. W .2d 843, 846 (Tex . 1979). Relators seeking issuance of a writ of manda mus

also must provide a sufficient record to establish entitlement to suc h relief. W alker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992). It isthe relator’s burden to show entitlement

to the relief

being requested. See gen era lly Johnso n v. Fou rth Dist rict Cour t of Ap pea ls , 7 00 S.W .2 d 9 16 , 9 17 (T ex. 1985) (ori g. proceedi ng). Relator must file with the3

petition a certified sworn copy of every docum ent that is m aterial to relator’s claim for relief and that wa s filed in any und erly ing p roceed ing, and a pr ope rly authenticated transcript of any relevant testim ony from any underlying proceeding including any exhibits offered in evidence or a statem ent that no testim ony wasadduced in connection w ith the com plained of matter. T EX . R. A PP . P. 52.7(a). Relator’s petiti on contains o nly all egations. Those all egations do not assert that relatorpresented his m otion to respondent for action o n th e m otion. Nor do the attachm ents to relator’s petition for m andam us show t hat relator presented his trial cour t petition or

the m atters in it to respondent w ith a request that respondent consider and act on the ma tters. See State ex rel. Curry , 726 S.W.2d at 128. Accordingly, relator has not presented a record which show s entitlem ent to t he relief sou ght, or upon w hich we are authorized to act. The petition for writ of m andam us is denied.

Phil Johnson Justice
Do not publish.