In re Shane McClain Cain--Appeal from 25th District Court of Gonzales County

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 17, 2003

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

This mandamus arises out of the trial court's denial of Relator's Shane McClain Cain's "Motion for Appointment of Counsel to Pursue Motion for Forensic DNA Testing." Cain seeks a writ of mandamus ordering respondent, the Honorable Gus J. Strauss, to vacate his order denying Cain's motion and to grant Cain's request for appointment of counsel. Because we conclude that Cain is entitled to the relief sought, we conditionally grant the writ.

To be entitled to mandamus relief, a relator must demonstrate (1) that he has no other adequate remedy at law, and (2) that under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals, 34 S.W.3d 924, 926-27 (Tex. Crim. App. 2001). An act is ministerial if it does not involve the exercise of any discretion. Id. at 927.

Article 64.01(c) of the Texas Code of Criminal Procedure entitles convicted persons to counsel during DNA-testing proceedings:

A convicted person is entitled to counsel during a proceeding under this chapter. If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person.

Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2003). "Conspicuously absent from article 64.01(c) is any requirement of a prima facie case of entitlement to DNA testing before the right to counsel attaches." In re Rodriguez, 77 S.W.3d 459, 461 (Tex. App.--Corpus Christi 2002, orig. proceeding). Article 64.01(c) only requires a request for counsel and indigence. Id. Once a convicted person meets those requirements, appointment of counsel is mandatory. Id. We, therefore, hold that respondent had a ministerial duty to appoint counsel for relator. (2)

Accordingly, we conditionally grant relator's petition for writ of mandamus and direct respondent (1) to withdraw his order denying relator's motion for appointment of counsel and (2) to appoint counsel to represent relator in the chapter 64 proceeding. Only if the Honorable Gus J. Strauss fails to comply will we issue the writ.

Karen Angelini, Justice

1. This proceeding arises out of Cause No. 91-0984-CR, styled Shane McClain Cain v. The State of Texas, pending in the 25th Judicial District Court, Guadalupe County, Texas, the Honorable Gus J. Strauss presiding.

2. In its brief on the merits, the State concedes that the respondent should have appointed counsel for Cain.