IN RE ANDRES HERRERA (other)

OF TEXAS

NO. WR-74,603-01

IN RE ANDRES HERRERA, Relator

ON PETITION FOR A WRIT OF MANDAMUS

CAUSE NO. F-08-11091-R IN THE 265TH DISTRICT COURT

FROM DALLAS COUNTY

Per curiam.

O R D E R

Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. Relator has already presented his claim to the Fifth Court of Appeals, but was denied relief. In re Andres Herrera, No. 05-10-00897-CV (Tex. App. Dallas Aug. 17, 2010) (not designated for publication). Relator contends that he filed a motion for DNA testing and an affidavit in support of the motion in the convicting court, but that the judge has not ruled on the motion. Tex. Code Crim. Proc. art. 64.01(a). A trial court has a ministerial duty to rule upon a motion that is properly and timely presented to it for a ruling. State ex rel. Young v. Sixth Judicial Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). Relator has alleged facts which, if true, could entitle him to mandamus relief.

In these circumstances, additional facts are needed. The respondent, the Judge of the 265th District Court of Dallas County, is ordered to file a response with this Court addressing whether Relator has properly filed a Chapter 64 motion in that court. If relator has filed such a motion, the respondent shall address whether the motion has been ruled upon and, if the motion has not been ruled upon, the respondent shall discuss the rationale for not taking action on the motion. The real party in interest, the Dallas County District Attorney, may also submit a response.

This motion for leave to file a writ of mandamus will be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order.

Filed: November 3, 2010

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