DocketNumber： 06-04-00053-CV
Filed Date： 4/29/2004
Status： Precedential
Modified Date： 9/7/2015
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-04-00053-CV
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IN RE:
GARY DEAN COOKS
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Grant, JJ.
Opinion by Chief Justice Morriss
O P I N I O N
Gary Dean Cooks has filed a petition seeking a writ of mandamus. In his petition, he states he is awaiting trial on a kidnapping charge and complains that the trial court has refused or failed to rule on a number of motions he has prepared and filed pro se. Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994).
A trial court is required to consider and rule on a matter within its jurisdiction within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266–67 (Tex. Civ. App.—Tyler 1976, orig. proceeding). "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act," and mandamus may issue to compel the trial judge to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig.proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (holding trial court abused discretion by refusing to conduct hearing and render decision on motion).
In this case, however, Cooks is represented by counsel in the proceeding below. There is no right to hybrid representation in Texas. Ex parte Taylor, 36 S.W.3d 883 (Tex. Crim. App. 2001); Turner v. State, 805 S.W.2d 423, 425 n.1 (Tex. Crim. App. 1991); Meyer v. State, 27 S.W.3d 644, 648 (Tex. App.—Waco 2000, pet. ref'd). Accordingly, the trial court need not consider or rule on motions presented by the defendant personally. Once an appellant has assistance of counsel, the court is entitled to look solely to the attorney and is not required to consider pro se motions. McKinny v. State, 76 S.W.3d 463, 478 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Ashcraft v. State, 900 S.W.2d 817, 831 (Tex. App.—Corpus Christi 1995, pet. ref'd, pet. dism'd [2 pets.]). The trial court did not violate a ministerial duty by declining to rule on the motions filed.
We deny the petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 28, 2004
Date Decided: April 29, 2004
013-cvwynnv.johnsonopinion/footnoteicon.gif" alt="Footnote" width="16" height="14" border="0"> and with a limited record, Wynn appeals on the sole issue that the trial court's dismissal of the action denied Wynn the due process of law guaranteed by the United States Constitution. We affirm the trial court's dismissal because we hold that Wynn was not denied the due process of law.
Unlike parental rights termination proceedings, there is no statutory right to counsel under the genetic testing provisions of the Texas Family Code. Compare Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2006) (post-conviction DNA testing; indigent's statutory right to appointment of counsel) with Tex. Fam. Code Ann. §§ 160.601, 106.603–.606, 106.611, 106.621–.632, 106.634–.637 (Vernon 2002), §§ 106.602, 160.607–.608, 160.612, 106.633 (Vernon Supp. 2006) (parentage proceedings; no statutory right to appointment of counsel).
Wynn cites Section 24.016 of the Texas Government Code as authority that he should have been appointed counsel. That section is not applicable, not mandating the appointment of counsel, but merely stating that a court "may appoint counsel" in an appropriate civil case. See Tex. Gov't Code Ann. § 24.016 (Vernon 2004).
Wynn is partially correct in his next paragraph, namely his claim that Section 107.013 of the Texas Family Code requires appointment of counsel in parental rights termination cases. That section requires appointment of counsel for indigent parents against whom a government entity seeks termination of their parental rights. See Tex. Fam. Code Ann. § 107.013(a) (Vernon Supp. 2006). This section is also inapplicable to Wynn's case, because no government entity sought termination of his parental rights.
Finally, without citing to the source of the quote, Wynn makes his sole constitutional argument: "When deprivation of parental [rights] status is at stake, counsel is part of the process that is due." After finding the source of Wynn's quote, we noticed an important omission from Wynn's version of the quote. The proper quote is, "When deprivation of parental status is at stake, however, counsel is sometimes part of the process that is due." M.L.B. v. S.L.J., 519 U.S. 102, 123 (1996) (emphasis added). The important point is that there is no blanket rule requiring appointment of counsel for indigent parents whose parental rights are being terminated. M.L.B. cites to Lassiter v. Dep't of Social Servs., 452 U.S. 18, 30–33 (1981), which calls for a case by case weighing of various factors to determine whether, before termination of parental rights can be ordered, counsel must be appointed for an indigent parent. But we need not engage in that weighing process. Wynn has not been denied due process, because his parental rights, if any, have not been affected. That is because the entire action, including Johnson's counterclaim for termination of Wynn's parental rights, was dismissed, along with Wynn's suit to establish a parent-child relationship and, alternatively, for DNA testing.
There was no error in dismissing the case without appointing counsel to represent Wynn. We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 14, 2006
Date Decided: August 24, 2006