In Re: Betti Flores--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: BETTI FLORES,

Relator.

No. 08-06-00079-CR

AN ORIGINAL PROCEEDING

IN MANDAMUS

OPINION ON PETITION FOR WRIT OF MANDAMUS

This is an original proceeding in mandamus. Relator, Betti Flores, seeks a writ of mandamus requiring the Honorable Willie Dubose, sitting by assignment in the 41st District Court in El Paso County, Texas, to grant Relator s motion for continuance in order to continue her trial a day beyond the El Paso County Democratic Party run-off election date.

STANDARD OF REVIEW

To establish an entitlement to mandamus relief, a relator must satisfy two requirements: (1) there must be no adequate remedy at law to redress his alleged harm; and (2) the relator must have a clear right to the relief sought. Buntion v. Harmon, 827 S.W.2d 945, 947-48 and n.2 (Tex. Crim. App. 1992); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992). The second element has historically been stated in terms of requiring that the judicial conduct from which relief is sought be ministerial in nature. Buntion, 827 S.W.2d at 948 n.2. An act is ministerial where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment. Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981). A ministerial act is not implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. State ex rel. Hill v. Court of Appeals for Fifth District, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). However, a so-called discretionary act may become ministerial when the facts and circumstances dictate but one rational decision. Buntion, 827 S.W.2d at 948 n.2.

APPLICATION OF THE LAW TO THE FACTS

Based upon the limited record provided to us, we are unable to conclude that Relator has a clear right to the relief she seeks in her petition for writ of mandamus. Accordingly, we deny the relief requested in the petition for writ of mandamus.

RICHARD BARAJAS, Chief Justice

April 13, 2006

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)