in Re: Miguel Avitia ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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                                                                              )              No.  08-03-00145-CR

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IN RE: MIGUEL AVITIA                                     )     AN ORIGINAL PROCEEDING

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                                                                              )     IN MANDAMUS

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MEMORANDUM OPINION ON WRIT OF MANDAMUS

This is an original proceeding in mandamus.  Miguel Avitia, seeks a writ of mandamus requiring the Honorable Luis Aguilar, Judge of the 120th District Court of El Paso County, to vacate or rescind an order replacing appointed counsel with another attorney. For the reasons stated below, we deny relief.

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 Aministerial@ in nature.  Buntion, 827 S.W.2d at 947 n.2. An act is ministerial Awhen 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 the Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App. 2001).  However, a so‑called Adiscretionary@ act may become Aministerial@ when the facts and circumstances dictate but one rational decision.  Buntion, 827 S.W.2d at 947 n.2.

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

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

April 10, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)