### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00004- CV

In re Donald Aekin s

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N
In this orig inal proce eding , Relator Donald Aekins seeks a writ of mandamus to comp el t h e Ho n orable Br enda Kenne dy , presiding judge of the 403rd J udicial District Court of Travis County , to rule on his motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedur e and his motion reque sting an appointed attorney to assist him in pursuing fore nsic DNA testing. See Tex. Code Crim. Proc. arts. 64.01–.03. We conditionally g rant the writ.

To be entitl ed to mandamus relief i n a cr i minal case , a relator mus t establish that: (1) he has no o t her adequa te leg al reme dy to redr ess the alleg ed harm, and (2) under the rele vant fac ts a nd law, the act soug ht to be compelled is pur ely minist eria l, not involving a discretionar y or judicial decision. State ex rel. Y oung v. Sixth Judicial Dist. Court of Appeals , 236 S.W .3d 207, 210 (Tex. Crim. App. 2007) (orig
. proce eding ); see In re State ex rel. W eek s , 391 S.W .3d 117, 122 (Tex. Crim. App. 2013) (orig
. proce eding ). An act is minist eria l if it does not involve the exercise of any discretion and the relator has a clea r right t o relief

. State ex rel. Hill v. Court of Appeals for Fif th Dist. , 34 S.W .3d 924, 927 (Tex. Crim. App. 2001) (orig
. proce eding ); In re Daisy , 156 S.W .3d 922, 924 (Tex. App.—Dallas 2005, orig
. proce eding ). The relief soug ht must be clea r and indisputable,such that its merits are beyond dispute. See State ex rel. Hi l l , 3 4 S
. W
. 3d at 927–28; In re Daisy ,

156 S.W .3d at 924 ; see also In re Bonilla , 424 S.W .3d 528, 533 (Tex. Crim. App. 2014) (“A clea r rig ht to relief is shown when the fac ts and circ umstances dictate but one ra t i o n al decision under unequivoca l, well-settled (i.e., from extant statutory , constitutional, or case law source s), and clea rly controllingleg al principles.” ).

A trial court must consider and ru l e on a motion brought to the court’s attention within a rea sonable amount of time. In re Cash , 99 S.W .3d 286, 288 (Tex. App.—Texarkana 2003, orig
. proce eding ); In re Bonds , 57 S. W
. 3 d 4 5 6 , 457 (Tex. App.—San Antonio 2001, orig
. proce eding ). This includes ruling s on motions for DNA testing and the appointment of counsel for the purpose of pursuing DNA testing under Chapter 64 of the Texas Code of Criminal Proc edure
. In re Cash , 99 S.W .3d at 288; see In re Dimas , 88 S.W .3d 349, 351 (Tex. App.—San Antonio 2002, orig
. proce eding ). To o b t ai n mandamus relief for the trial court’s ref usal to rule on a motion, a relator must establish: (1) the motion was proper ly filed and has been pending for a rea sonable time; (2) the relator reque sted a ruling on the motion; an d (3 ) t h e t ri al court ref used to rule. In re Sarkissian , 243 S.W .3d 860, 861 (Tex. App.—Waco 2008, orig
. proce eding ); In re Hearn , 137 S.W .3d 681, 685 (Tex. App.—San Antonio 2004, orig
. proce eding ). When a motion has been proper ly filed and has b een broug ht to the court’s attention, the act of giving consideration to and ruling upon that motion i s a m inisterial act, and mandamus m ay issue to compel the trial judge to act. In re Bonds , 57 S.W .3d at 457; see I n re Cash , 99 S.W .3d at 288 (conditionally g rantingwrit of mandamus when trial cour t failed to rule on motion for f orensic D NA testingfor f ive months).

2The rec ord in this matter demonstrates that Relator filed his motion for fore nsic DNA

testing on April 10, 2014. The rec ord also indicates that in connec tion with that motion, Relator filed a motion reque sting the appointment of counsel to as s i s t h i m in pursing DNA testing. The 1
rec ord also contains sever al letters sent to the cler k in which Relator asks the cler k’s office and “the 403rd District Court” to “set this DNA motion and its supporting motions for a hear ing” and “pre sent these motions to the presiding J udg e for a ruling .” One of these letters is dated September 29, 2014 and file-mar

ked October 1, 2014. Thus, the rec ord befor e us establishes that Relator’s motions for DNA testing and the appointment of counsel have been proper ly filed and broug ht to the cou rt ’s attention. The recor d further ref lects t hat t he trial court has not ac t ed o n R elator’s motions in the 11 months since they wer e filed. This failure to act constitutes an a buse of discr etion beca

use t he trial court has a minist eria l duty to enter a ru ling within a rea sonable time. For this rea son, we conditionally

g rant the pe tition for writ of mandamus. We direc t Respondent to rule on Relator’s motion for fore nsic DNA testing and his reque st for the appointment of counsel in this mat t er . W e ar e confide nt that Respondent will promptly comply with this opi nion. The writ will issue only if Respondent fa ils to do so.

Both Relator in his p et i t i on for writ of mandamus and the State in its response to the 1 petition indicate that the m otion reque sting the appointment of counse l was filed at the same time as the motion for DN A testing
. 3__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Filed: Mar ch 11, 2015

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