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Click here for the full text of this decision A person is not required to make a prima facie case that he is entitled to DNA testing before the right to counsel attaches. If the relator requests counsel and proves indigence, the appointment of counsel is a purely ministerial act. FACTS:The relator pleaded guilty to aggravated sexual assault of a child under 14 years of age and was sentenced to 20 years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On Feb. 1, 2002, relator filed a motion for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. On Aug. 12, 2002, the convicting court (the respondent) denied the relator’s motion for DNA testing, including his request for counsel. The relator then filed an application for writ of mandamus, alleging that the trial judge erred in denying him counsel for the Chapter 64 proceeding. This court remanded to determine whether the relator requested counsel and, if so, why counsel was not appointed. The respondent answered, noting that the relator did request counsel in his original motion filed pursuant to Chapter 64. The respondent’s answer gave three reasons for denying relator’s motion for DNA testing, as well as his request for counsel: 1. the victim was not medically examined until three weeks after the offense; 2. no biological evidence was collected during the medical exam; and 3. the relator’s conduct in digitally penetrating the victim was not likely to leave biological evidence. It is undisputed that the relator proved his indigence in his original motion. HOLDING:Conditionally granted. Article 64.01(c) of the Texas Code of Criminal Procedure states that “[a] convicted person is entitled to counsel during a proceeding under this chapter. If a convicted person informs the trial court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person.” The article says a person is entitled to counsel under that chapter. Id. Furthermore, it says the court shall appoint counsel for the defendant if the defendant informs the court he intends to file a motion under Chapter 64 and the court finds him indigent. Per the literal reading of the statute, the defendant need not even ask to be appointed an attorney; the court must appoint an attorney if the two basic requirements of Article 64.01(c) are met. The respondent admits that providing counsel in a Chapter 64 proceeding is required by the statute, but asserts that doing so would be a “useless act” due to the lack of evidence containing biological material available for testing. However, no wording in the statute gives a judge the discretion to deny appointment of an attorney merely because the judge concludes that doing so would be “useless.” Appointment of counsel is mandatory if the convicted person does two things: proves he is indigent and informs the court that he wishes to file a motion under Chapter 64. Neveu v. Culver, 105 S.W.3d 641 (Tex. Crim. App. 2003). The statute does not require a person to make a prima facie case that he is entitled to DNA testing before the right to counsel attaches. If the relator requests counsel and proves indigence, the appointment of counsel is a purely ministerial act. Because relator met the test for appointment of counsel and because all requirements for mandamus relief have been fulfilled, the court conditionally grants the relator’s petition for writ of mandamus and direct respondent t 1. vacate his Aug. 12, 2002, order denying the relator’s motion for post-conviction DNA testing; 2. appoint counsel to represent relator in the Chapter 64 proceeding; and 3. reconsider the relator’s motion for post-conviction DNA testing after counsel has been appointed. OPINION:Meyers, J., delivered the unanimous opinion of the court.

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