in Re Ray Anthony Scott

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00587-CV In re Ray Anthony Scott

ORIGINAL PROCEEDING FROM LEE COUNTY M E M O R A N D U M O P I N I O N

This is an original mandamus proceeding. Relator Ray Anthony Scott asks this Court to order the respondent, the Honorable John L. Placke, Judge of the 21st Judicial District Court, to appoint counsel and otherwise act on Scott's motion for DNA testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-3 (amended Sep. 1, 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2004-05)).

Scott is serving a prison sentence for attempted capital murder. See Scott v. State, 968 S.W.2d 574 Tex. App.--Austin 1998, pet. ref'd). Scott's pro se motion for DNA testing and request for appointed counsel were filed on March 10, 2003. Under article 64.01(c) as it then read, Scott was statutorily entitled to appointed counsel if indigent. Winters v. Presiding Judge, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003); Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003). To date, no action has been taken on Scott's motions.

We conditionally grant the petition for writ of mandamus. The respondent is directed to determine whether Scott is indigent and if so, to appoint counsel to represent him in this chapter 64 proceeding. The respondent is further directed to obtain the State's response to Scott's testing motion and to make the findings required by chapter 64. We withhold issuance of the writ to afford the respondent an opportunity to make issuance unnecessary.

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Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Puryear

Filed: October 11, 2004