      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00002-CV




                                In re Charles Raymond Lee, Jr.




                  ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY



                            MEMORANDUM OPINION


               Charles Raymond Lee, Jr., seeks a writ of mandamus directing the judge of the

277th District Court to appoint counsel to assist him in his chapter 64 forensic DNA testing

proceeding. We deny the petition.

               Before September 1, 2003, the appointment of counsel for an indigent person was

mandatory under article 64.01(c). Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, art. 64.01,

2001 Tex. Gen. Laws 2, 3. Moreover, appeals in chapter 64 proceedings were then limited to

findings under articles 64.03 and 64.04. Id. ch. 2, § 2, art. 64.05, 2001 Tex. Gen. Laws 2, 4. For

these reasons, mandamus was deemed the proper vehicle by which to obtain relief if a request for

appointed counsel was denied. Winters v. Presiding Judge, 118 S.W.3d 773, 775-76 (Tex. Crim.

App. 2003); Neveu v. Culver, 105 S.W.3d 641, 643 (Tex. Crim. App. 2003).

               Articles 64.01 and 64.05 were amended effective September 1, 2003. Under

article 64.01(c) as amended, an indigent person seeking DNA testing is entitled to appointed counsel
only if the trial court finds reasonable grounds for a testing motion to be filed. Tex. Code Crim.

Proc. Ann. art. 64.01(c) (West Supp. 2009). Thus, the appointment of counsel under article 64.01(c)

is no longer a ministerial act. In re Ludwig, 162 S.W.3d 454 Tex. App.—Waco 2005) (orig.

proceeding). As amended, article 64.05 permits “appeal[s] under this chapter.” Tex. Code Crim.

Proc. Ann. art. 64.05 (West 2006). Thus, an appeal now lies from an order denying a request for

appointed counsel. James v. State, 196 S.W.3d 847, 849 Tex. App.—Texarkana 2006, no pet.);

see Lewis v. State, 191 S.W.3d 225, 227-28 Tex. App.—San Antonio 2005, pet. ref’d);

In re Bowman, No. 03-07-00418-CR, 2007 Tex. App. LEXIS 9500, at *2 (Tex. App.—Austin

Dec. 5, 2007, no pet.) (mem. op., not designated for publication).

               Because the appointment of counsel in a chapter 64 proceeding is not a ministerial

act and because the denial of a request for appointed counsel is an appealable order, the petition for

writ of mandamus is denied. See Tex. R. App. P. 52.8(a).




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Filed: January 20, 2010




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