IN RE: JOHN ALLEN RUBIO--Appeal from 138th District Court of Cameron County
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NUMBER 13-09-00415-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE JOHN ALLEN RUBIO On Petition for Writ of Mandamus. MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Vela Per Curiam Memorandum Opinion1 Relator, John Allen Rubio, filed an application for writs of mandamus and/or prohibition and an Emergency Motion to Stay District Court Proceedings Pending Mandamus Proceedings in the above cause on July 15, 2009. That same day, the Court requested that the real party in interest file a response to the petition for writs of mandamus and/or prohibition, and ordered the Emergency Motion to Stay to be carried with the case. The Court has now received and reviewed the response to the petition for writs of mandamus and/or prohibition filed by the real party in interest, the State of Texas, acting 1 See T EX . R. A PP . P. 52.8(d) ( W hen denying relief, the court m ay hand down an opinion but is not required to do so. ); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions). by and through the Criminal District Attorney in and for Cameron County, Texas. Mandamus relief may be granted if the relator shows that: (1) the act sought to be compelled is purely ministerial; and (2) there is no adequate remedy at law. See Deleon v. Dist. Clerk, 187 S.W.3d 473, 474 (Tex. Crim. App. 2006) (orig. proceeding). The relator must have a clear right to the relief sought and the merits of the relief sought must be beyond dispute. See id. The requirement of a clear legal right necessitates that the law plainly describes the duty to be performed such that there is no room for the exercise of discretion. Id. The Court, having examined and fully considered the petition for writs of mandamus and/or prohibition and the response thereto, is of the opinion that relator has not shown himself entitled to the relief sought. Accordingly, the petition for writs of mandamus and/or prohibition and the emergency motion to stay are DENIED. See TEX . R. APP. P. 52.8(a). PER CURIAM Do not publish. See TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this 27th day of July, 2009. 2
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