                                      In The
                                Court of Appeals
                  Sixth Appellate District of Texas at Texarkana

                             ______________________________

                                   No. 06-08-00200-CR
                             ______________________________



                                         IN RE:
                                    JARRARD MCGARY




                               Original Mandamus Proceeding




                       Before Morriss, C.J., Moseley and Cornelius*, JJ.
                        Memorandum Opinion by Chief Justice Morriss




______________________________________
*Chief Justice, Retired, Sitting by Assignment
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MEMORANDUM                                   OPINION

       Jarrard McGary was convicted of murder in 1997. Since 2001, McGary has, in various ways,

sought to obtain DNA testing to undermine his conviction. His latest motion, filed February 6, 2007,

in the Fifth Judicial District Court in Bowie County, seeks appointment of an expert and an order

for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. On

October 9, 2007, the trial court held a hearing on McGary's motion and requested post-hearing

briefing, which was dated December 19, 2007. Two times since then—March 24 and May 27,

2008—McGary's counsel reminded the trial court of the pending motion and requested its

ruling. Finally, by letter dated July 10, 2008, McGary's counsel asked the State to contact the trial

court and ask for a ruling on the motion. No ruling has been made.

       On October 8, 2008, McGary filed a petition for writ of mandamus asking us to order the trial

court to rule on his motion. We conditionally grant the petition.

       The State's response to McGary's petition was received October 29, 2008. In that response,

the State asserts that, because the affidavit required by Section 64.01 of the Texas Code of Criminal

Procedure was not attached to McGary's motion, the motion was not ripe for decision and that

McGary's motion will become moot November 14, 2008, by being ruled on at that time.

       To establish entitlement to mandamus relief, the relator must show that there is no adequate

remedy at law to redress the alleged harm and that the act to be compelled is purely ministerial.

Alvarez v. Eighth Court of Appeals, 977 S.W.2d 590, 592 (Tex. Crim. App. 1998) (orig. proceeding);



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Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex. Crim. App. 1995) (orig. proceeding). An act is

ministerial "where the law clearly spells out the duty to be performed . . . with such certainty that

nothing is left to the exercise of discretion or judgment." Tex. Dep't of Corrections v. Dalehite, 623

S.W.2d 420, 424 (Tex. Crim. App. 1981) (orig. proceeding).

       Within a reasonable amount of time, a trial court must consider and rule on a motion brought

to the court's attention. In re Bonds, 57 S.W.3d 456, 457 (Tex. App.—San Antonio 2001, orig.

proceeding). This includes rulings on motions for DNA testing and the appointment of counsel for

the purpose of pursuing DNA testing under Chapter 64 of the Texas Code of Criminal Procedure.

In re Cash, 99 S.W.3d 286, 288 (Tex. App.—Texarkana 2003, orig. proceeding); In re Dimas, 88

S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding). McGary's motion has been

pending and ripe for a ruling for ten months, and counsel has twice urged the trial court to rule. That

delay is certainly beyond a reasonable time.

       While we have jurisdiction to direct the trial court to proceed and rule, we may not tell the

court what ruling it should make. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex. 1962)

(orig. proceeding); State ex rel. Hill v. Court of Appeals, Fifth Dist., 34 S.W.3d 924, 927 n.3 (Tex.

Crim. App. 2001) (orig. proceeding).




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       We conditionally grant McGary's petition for writ of mandamus. The writ will issue only if

the trial court fails to rule on McGary's motion within twenty-one days from the date of this opinion.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        November 5, 2008
Date Decided:          November 6, 2008

Do Not Publish




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