In re Charlene Holland--Appeal from 227th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-03-00042-CV
IN RE Charlene HOLLAND
Original Mandamus Proceeding
Arising from the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1845B
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 12, 2003

Based on the record we have received from the underlying proceeding, it appears that relator Charlene Holland mailed an application for writ of habeas corpus bond pending appeal to the trial court on November 19, 2002. In a subsequent motion mailed January 6, 2003, Holland included a letter asking the trial court coordinator to set her application for a bail hearing with the judge. At this point, Holland has physically done everything she can possibly do from jail in representing herself pro se and in seeking to obtain a hearing on her application.

Although the majority does not find fault with Holland's actions, the majority does not provide her with any relief. In my opinion, Holland's application was filed and pending before the trial court, and Holland had reminded the trial court of her pending application and her request for a hearing. Under those circumstances, the action required by the trial court in giving Holland's application consideration and in ruling on it was a ministerial act, and mandamus relief is available to require a judge to perform a ministerial act. In re Ramirez, 994 S.W.2d 682, 683-84 (Tex. App.--San Antonio 1998, orig. proceeding). Even assuming that the record is not sufficient for a majority of this court to determine that Holland is entitled to the relief sought, the record is at least sufficient to raise a serious question concerning the requested relief, requiring further consideration; therefore, this court should at least request a response to Holland's petition. See Tex. R. App. P. 52.8(b). Because the majority denies Holland's petition for writ of mandamus without requesting a response, I respectfully dissent.

Alma L. L pez, Chief Justice

PUBLISH