in Re: Jaime Luevano ( 2005 )

Criminal Case Template

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: JAIME LUEVANO,                             Relator.

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No. 08-05-00001-CR AN ORIGINAL PROCEEDING IN MANDAMUS

OPINION ON PETITION FOR WRIT OF MANDAMUS

           This is an original proceeding in mandamus. Jaime Luevano seeks a writ of mandamus requiring the Honorable Judge of the 346th District Court of El Paso County to dismiss a charge of retaliation. 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 “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 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.

                                                                  RICHARD BARAJAS, Chief Justice

February 10, 2005

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

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