in Re Tuan Van Ly

• Court: Court of Appeals of Texas
• Decided: July 18, 2013
• Docket: 14-13-00537-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 18, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00537-CR

IN RE TUAN VAN LY, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 228th District Court Harris County, Texas Trial Court Cause No. 643995

MEMORANDUM OPINION

On June 21, 2013, relator Tuan Van Ly filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Marc Carter, presiding judge of the 228th District Court of Harris County to secure DNA testing following the granting of relator’s motion for DNA testing. Relator contends he filed a motion for DNA testing, counsel was appointed, and his motion was granted. Since that time, he contends his DNA has not been tested. Relator asks this court to order the trial court to secure DNA testing. Attached to relator’s petition are his motion, a form granting appointment of counsel, and several letters from relator imploring his counsel and the court to provide him with information as to the status of the DNA testing.

Consideration of a motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (orig. proceeding). A trial court has a ministerial duty to timely rule on a motion requesting relief. In re Salazar, 134 S.W.3d 357, 358 (Tex. App.— Waco 2003, orig. proceeding). According to relator, the trial court fulfilled its duty by granting his motion for DNA testing. We find no authority requiring the trial court to secure DNA testing after granting relator’s motion. To the extent relator’s petition can be construed to be requesting mandamus relief against his appointed counsel, we do not have jurisdiction to grant such relief. See Tex. Gov’t Code Ann. § 22.221.

Relator has not established entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Brown, Christopher, and McCally. Do Not Publish — TEX. R. APP. P. 47.2(b). 2