In Re: Calvin Cash--Appeal from of County

6-96-028-CV Long Trusts v. Dowd In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00042-CV
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IN RE: CALVIN RAY CASH
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Calvin Ray Cash filed a petition for writ of mandamus with this Court asking us to direct the respondent, the Honorable Robert E. Newson, Judge of the 8th Judicial District Court of Hopkins County, Texas, to appoint counsel for him under Chapter 64 of the Texas Code of Criminal Procedure. Trial courts shall appoint counsel for indigent individuals seeking post-conviction DNA testing of evidence. Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2003).

Our power to issue writs of mandamus is not of constitutional origin, but is instead a creature of statute. A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 685 (Tex. 1995) (Hecht, J., dissenting). Section 22.221(b) of the Texas Government Code governs our jurisdiction to grant mandamus relief:

Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a:

(1) judge of a district or county court in the court of appeals district; or

(2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district.

 

Tex. Gov't Code Ann. 22.221(b) (Vernon Supp. 2003). Cash's petition seeks relief against a district court judge. Accordingly, we have jurisdiction to consider the merits of Cash's petition. (1)

To be entitled to mandamus relief, the relator must demonstrate (1) that no other adequate remedy at law exists and (2) that under the law and facts relevant to the case, the act sought to be compelled is purely ministerial. In re Rodriguez, 77 S.W.3d 459, 460 (Tex. App.-Corpus Christi, 2002, orig. proceeding).

In the instant matter, it has been called to our attention that the trial court has now appointed counsel to represent Cash in his pursuit of DNA testing. Cash's petition for writ of mandamus is moot. For this reason, we dismiss the petition.

 

Jack Carter

Justice

 

Date: March 19, 2003

1. We also have jurisdiction over this matter to enforce our order in Cash v. State, No. 06-02-00191-CV (Tex. App.-Texarkana Feb. 4, 2003, orig. proceeding), in which we conditionally granted Cash's petition for writ of mandamus. Tex. Gov't Code Ann. 22.221(a) (Vernon Supp. 2003).