in Re: Lawrence W. Few ( 2007 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: LAWRENCE W. FEW, Relator.

§ § § § § §

No. 08-07-00318-CR AN ORIGINAL PROCEEDING IN MANDAMUS

MEMORANDUM OPINION

Lawrence Few has filed a pro se petition for writ of mandamus requesting this Court issue an order compelling the trial court to appoint an attorney to represent Few in his petition for habeas corpus. Mandamus relief is denied.

DISCUSSION

In order to obtain relief through a writ of mandamus, a relator must establish: (1) no other adequate remedy at law is available and (2) that the act he seeks to compel is ministerial. Dickens v. Court of Appeals For Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). An act is ministerial if it does not involve the exercise of any discretion. 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 discretionary function may become ministerial when the facts and circumstances dictate but one rational decision. Buntion v. Harmon, 827 S.W.2d 945, 948 n.2 (Tex. Crim. App. 1992).

This Court is empowered to direct a trial court to consider and rule on a properly filed pending motion if: (1) relator has asked the trial court to rule; and (2) the trial court either refused to rule, or failed to rule within a reasonable time. See Barnes v. State, 832 S.W.2d 424, 426-27 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding). It is the relator's burden to provide this Court with a sufficient record to establish his right to mandamus relief. See Tex. R. App. P. 52.3(j)(1)(A) (appendix to mandamus petition must contain a copy of any order complained of, or any other document showing the matter complained of); Tex. R. App. P. 52.7(a)(1) (relator must file with the mandamus petition a copy of every document that is material to his claim for relief); Greenwell v. Court of Appeals for the Thirteenth District, 159 S.W.3d 645, 648 (Tex. Crim. App. 2005).

Here, Few requests that this Court order the trial court to appoint an attorney to represent him in a habeas corpus action. There is no record that Relator has presented such a motion to the trial court, nor that the trial court has denied or refused to rule on the same. As Relator has failed to provide this Court with a record sufficient to establish his right to mandamus relief, the petition is denied.

KENNETH R. CARR, Justice

December 13, 2007

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

McClure, J., not participating

(Do Not Publish)