OPINION
delivered the opinion of the Court,
This is an original
mandamus
рroceeding. Relator, an inmate in the Texas Department of Criminal Justice — institutional divisiоn, seeks a writ of
mandamus
ordering respondent to appoint an attorney to
Mandamus
relief may be granted if the relator can demonstrate that 1) the act sought to be compelled is purely ministerial and 2) that relator has no other adequate legal remedy.
State ex rel. Rosenthal v. Poe,
as a rеquirement that the relator have “a clear right to the relief sought” meaning that the relief sought must be “clear and indisputable” such that its merits are “beyond dispute” with “nothing left to the exercise of discretion or judgment.”
Id.,
quoting
State ex rel. Hill v. Fifth Court of Appeals,
Article 64.01(a) allows a convicted person to submit to the convicting court a motion for DNA testing. 2 Article 64.01(c) specifically states that such convicted person “is entitled to counsel during a proceeding under this chapter.” 3 That sеction 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.” (Emphasis added.)
The record in this casе reflects that relator’s motion for DNA testing requested the appointment of counsеl for the proceedings, specifically, “Sir I am respectfully requesting Under Rule 64 that you рlease appoint me an ‘Attorney.’ ” (Emphasis in original.) On October 30, 2002, we ordered respondеnt, the presiding judge of the 240th District Court, to file a response addressing, among other things, “in particular ... the issue of appointment of counsel to represent Relator.” The reсord before us does not reflect that respondent has filed a response addrеssing any of the issues to which our order was directed, including the specific issue of appointment of counsel for relator.
As stated above, 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.
We have held that having no right to appeal a resрondent’s order satisfies the requirement of lack of an adequate legal
Accordingly, we conditionally grant relator’s petition for writ of mandamus and direct respondent to determine whether relator is indigent, and if so, appoint counsel for relаtor. As is our custom, we withhold issuance of the writ to afford respondent an opportunity tо make issuance unnecessary.
Notes
. Unless otherwise indicated, all future references to articles refer to the Texas Code of Criminal Procedure.
. "A convicted persоn may submit to the convicting court a morion for forensic DNA testing of evidence contаining biological material.”
."A convicted person is entitled to counsel during a proceeding under this chapter. If a convicted person informs the convicting 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 of the person.”
. "An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.”