in Re: Jason Clarkson

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS IN RE: JASON CLARKSON, Relator. § § § § § § No. 08-05-00300-CR AN ORIGINAL PROCEEDING IN MANDAMUS AND WRIT OF PROHIBITION OPINION ON PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION This is an original proceeding in mandamus. Relator, Jason Clarkson, also requests a writ of prohibition. Relator seeks a writ of mandamus requiring the Honorable Stephen Ables to vacate his order assigning the Honorable Susan Larsen to hear Relator’s motion to recuse the Honorable Robert Anchondo, and a writ of prohibition prohibiting the Honorable Stephen Ables from entering any order other than an order assigning another judge to hear the underlying case. STANDARD OF REVIEW To establish an entitlement to mandamus relief, a relator must satisfy two requirements: (1) there must be no adequate remedy at law to redress his alleged harm; and (2) the relator must have a clear right to the relief sought. Buntion v. Harmon, 827 S.W.2d 945, 947-48 and n.2 (Tex. Crim. App. 1992); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992). The second element has historically been stated in terms of requiring that the judicial conduct from which relief is sought be “ministerial” in nature. Buntion, 827 S.W.2d at 948 n.2. 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.” Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981). A ministerial act is not implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. State ex rel. Hill v. Court of Appeals for Fifth District, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). However, a so-called “discretionary” act may become “ministerial” when the facts and circumstances dictate but one rational decision. Buntion, 827 S.W.2d at 948 n.2. Regarding Relator’s writ of prohibition, section 22.221(a) of the Government Code sets the limits of our jurisdiction to issue writs. See Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004). That statute provides, “Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.” Id. Under section 22.221(a) our authority to issue a writ of prohibition “is limited to cases in which this Court has actual jurisdiction of a pending proceeding.” Faherty v. Knize, 764 S.W.2d 922, 923 (Tex. App.--Waco 1989, orig. proceeding). APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT Based upon the limited record provided to us, we are unable to conclude that Relator has a clear right to the relief he seeks in his petition for writ of mandamus. Accordingly, we deny the relief requested in the petition for mandamus. Regarding the petition for writ of prohibition, we have no pending proceeding before us for which the issuance of a writ of prohibition would be necessary to enforce our jurisdiction. Accordingly, we do not have jurisdiction to issue the requested writ. Relator’s petition for writ of prohibition is denied. PER CURIAM September 22, 2005 Before Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish)