in Re Perry Lee Olson ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-527 CV ____________________

IN RE PERRY LEE OLSON

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Original Proceeding

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OPINION  

Chapter 64 of the Texas Code of Criminal Procedure, which was enacted in 2001, created a procedure for convicted persons to obtain DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01-.05 (Vernon Supp. 2002). The petition for writ of mandamus filed by the relator, Perry Lee Olson, requires us to decide whether the convicting court may in its discretion deny an indigent person's request for appointment of counsel to assist him in the preparation of a motion for DNA testing.

Olson was convicted in the 1st District Court of Newton County, Texas, in Cause No. 3614. On September 12, 2001, Olson filed a request for appointment of counsel to assist him in obtaining an order for DNA testing. He attached a declaration of inability to pay costs to his motion. The State of Texas does not deny that Olson is indigent. It argues, however, that the trial court did not err in denying Olson's request for appointment of counsel because a motion for DNA testing would be meritless. The State contends that it has no biological evidence in its possession, that identity was not an issue in the case, and that the relator cannot show that there is a reasonable likelihood that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

The Code of Criminal Procedure states:

(c) A convicted person is entitled to counsel during a proceeding under this chapter. If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person. Compensation of counsel is provided in the same manner as is required by:

(1) Article 11.071 for the representation of a petitioner convicted of a capital felony; and

(2) Chapter 26 for the representation in a habeas corpus hearing of an indigent defendant convicted of a felony other than a capital felony.

Tex. Code Crim. Proc. Ann. § 64.01(c) (Vernon Supp. 2002).

Article 64.01(c) states that a convicted person is entitled to counsel in a proceeding for DNA testing. Conspicuously absent from Article 64.01(c) is any requirement of a prima facie case of entitlement to DNA testing before the right to counsel attaches. The only requirements for appointment of counsel are: 1) a request for counsel and 2) indigence. Once a convicted person meets those requirements, appointment of counsel is mandatory.

The State argues that it will be a waste of the taxpayers' funds to appoint counsel to pursue motions in cases where there is no biological evidence to subject to DNA testing. The existence of such evidence is yet to be determined by the trial court. Article 64.01(c) (2) states that counsel shall be compensated in the manner provided by Chapter 26; that is, counsel shall be paid a reasonable fee based upon time and labor required. See Tex. Code Crim. Proc. Ann. art. 26.05(a) (Vernon Supp. 2002). Counsel will be paid only for the time reasonably expended in pursuing the remedies available to the client. If the State possesses no biological evidence which is subject to DNA testing, counsel will expend little time on the case and waste little of the taxpayers' money, or, at least, no more than the Legislature has authorized in the pursuit of justice.

Appointment of counsel is mandatory, on request by the convicted person to the convicting court, if the convicted person proves that he is indigent and expresses a desire to file a motion for DNA testing. Accordingly, the judge of the 1st District Court had a ministerial duty to appoint counsel for Olson. We are confident that Judge Golden will vacate his order denying Olson's request for counsel and appoint counsel to represent Olson in the Chapter 64 proceeding. A writ of mandamus shall issue only if he fails to appoint counsel to represent Olson.

WRIT CONDITIONALLY GRANTED.

PER CURIAM

Submitted on January 7, 2002

Opinion Delivered January 24, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.