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Criminal Law No. 74-587, 5/21/2003. Click here for the full text of this decision FACTS: This is an original mandamus proceeding. The relator, an inmate, seeks a writ of mandamus ordering respondent to appoint an attorney to represent him in his motion for DNA testing pursuant to Texas Code of Criminal Procedure article 64.01(c). The relator is incarcerated based upon a conviction for aggravated sexual assault. He filed with the convicting court a motion for forensic DNA testing. The relator also specifically requested the appointment of an attorney. HOLDING: Conditionally granted. Article 64.01(a) allows a convicted person to submit to the convicting court a motion for DNA testing. Article 64.01(c) specifically states that such convicted person “is entitled to counsel during a proceeding under this chapter.” That section further provides that, if such person informs the convicting court that the person wishes to submit a motion under this chapter and is found to be indigent, “the court shall appoint counsel for the person.” The record in this case reflects that relator’s motion for DNA testing requested the appointment of counsel for the proceedings, specifically, “Sir I am respectfully requesting Under Rule 64 that you please appoint me an ‘Attorney.’” On Oct. 30, 2002, the court ordered respondent to file a response addressing, among other things, “in particular . . . the issue of appointment of counsel to represent the relator.” The record before the court does not reflect that respondent has filed a response addressing any of the issues to which the order was directed, including the specific issue of appointment of counsel for relator. Article 64.01(c) entitles relator to counsel during a proceeding in which relator is moving for forensic DNA testing; if the convicting court determines that relator is indigent, “the court shall appoint counsel for” relator. The language of the statute is mandatory. Thus, if the convicting court determines that the relator is indigent, appointment of counsel is a purely ministerial act. Relator therefore has satisfied the first requirement for mandamus relief. This court has held that having no right to appeal a respondent’s order satisfies the requirement of lack of an adequate legal remedy. Although article 64.05 provides for appealing a finding under art. 64.03 or 64.04, there are no provisions for appealing a finding regarding indigence or appointment of counsel under article 64.01(c). Since there is no provision for appeal of the court’s determination of indigence or failure to appoint counsel, the court concludes that relator has no adequate remedy at law. Relator therefore has also satisfied the second requirement for mandamus relief. OPINION: Johnson, J.; Keller, P.J., Meyers, Price, Keasler, Hervey, Holcomb and Cochran, JJ., join. Womack J., did not participate.

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