Failure to Perform Ministerial Duty required for appellate court to issue mandamus

Court of appeals declines to grant mandamus relief against judge on finding that order sought involved discretion rather than ministerial duty

In re Walker II (Tex. App. - Houston [14th Dist.] May 8, 2008)(per curiam)
(mandamus re order to respond to ineffective assistance of counsel claim)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Anderson and Brown
14-08-00347-CV In Re James Andrew Walker, II
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Thomas Ralph Culver

PER CURIAM OPINION ON PETITION FOR WRIT OF MANDAMUS

On April 29, 2008, relator, James Andrew Walker, II, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.

In the petition, relator asks this court to compel the Honorable John Ellisor, presiding judge of the 240th District Court of Brazoria County, to compel relator's trial attorney to comply with the trial court's December 18, 2007 order by filing an affidavit responding to the ineffective assistance of counsel claims raised in his application for writ of habeas corpus.

A court of appeals abuses its discretion in granting a mandamus when the act sought to be compelled is not ministerial. State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Because the act relator seeks to compel is not ministerial, he has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed May 8, 2008.
Panel consists of Justices Yates, Anderson and Brown.