in Re Jackie Russell Keeter ( 2003 )

In re Jackie Keeter

  IN THE

TENTH COURT OF APPEALS

No. 10-03-097-CR

IN RE JACKIE RUSSELL KEETER

Original Proceeding

OPINION ON REHEARING

      By opinion and judgment dated June 25, 2003, this Court conditionally granted Jackie Russell Keeter’s petition for a writ of mandamus compelling Respondent, the Honorable James E. Morgan, Judge of the 220th District Court of Hamilton County, to rule on his motion for a bench warrant so that Keeter can make an appeal bond following the reversal of his conviction. Respondent has requested that the Court reconsider its ruling because of an underlying factual dispute.

      To obtain mandamus relief, a petitioner must establish that: (1) “the act sought to be compelled is purely ‘ministerial’”; and (2) “he has no other adequate legal remedy.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding) (quoting State ex rel. Hill v. Ct. of Apps. for the 5th Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding)). An act is not “purely ministerial” if the relevant facts are disputed. Hill, 34 S.W.3d at 927-28 & n. 4 (citing State ex rel. Wade v. Mays, 689 S.W.2d 893, 898-900 (Tex. Crim. App. 1985) (orig. proceeding)).

      The parties dispute whether Keeter has presented any sureties to Respondent for his approval. Because of this factual dispute, Keeter is not entitled to the relief sought. Id.

      Accordingly, we grant Respondent’s motion for rehearing and deny the petition.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

Rehearing granted, petition denied

Opinion delivered and filed August 4, 2003

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