NEWELL, J., filed a dissenting opinion. Relator filed a petition seeking mandamus relief because the trial court refuses to rule on his motion for payment of fees for expert assistance in preparation of filing his application for writ of habeas corpus. Included in his motion for funding is also a request for the trial court to order the University of Texas Medical Branch to schedule an MRI and the Texas Department of Criminal Justice to transport Relator for that scan. It may be that Relator is not entitled to an order requiring a third party to conduct the MRI (at least not without arranged payment), but we are not reviewing a habeas court order. The habeas court has not ruled on the merits of the motion. Instead, we are ruling on whether the habeas court must rule on the motion. I believe the habeas court must rule on Relator’s motion for funding of expert assistance.[1] Section 3(b) of Article 11.071 allows writ counsel to file a request for payment of expenses, including expert fees, to investigate and present potential habeas corpus claims.[2] Section 3(c) mandates that a trial court must grant a request for expenses in whole or in part if the request for expenses is timely and reasonable, and it must enter a written order stating the reasons for denying the motion.[3] These statutory provisions anticipate that the request can be filed by a writ applicant and ruled on prior to the filing of a writ application. For this reason, I believe the State’s reliance upon State v. Patrick is misplaced. Patrick held that a trial court lacks jurisdiction to act once mandate has issued on the direct appeal, but it did so in the context of a motion for DNA testing.[4] Post-conviction DNA testing pursuant to Chapter 64 is wholly a creature of statute.[5] It does not contain statutory provisions that allow a defendant to request and a trial court to order funding for expert assistance prior to the filing of the request for DNA testing.[6] In contrast, an application for a writ of habeas corpus is authorized by the Texas Constitution.[7] There is a specific constitutional provision that prohibits suspension of a criminal defendant’s ability to file an application for a writ of habeas corpus.[8] And, as mentioned above, in the context of the death penalty, there is a specific statutory provision that authorizes a habeas court to rule on a motion for funding for expert assistance prior to the filing of a writ application.[9] Given these distinctions between a post-conviction writ in a death penalty case and a motion for DNA testing, I do not believe the habeas court lacks jurisdiction to rule on Relator’s motion for funding for expert assistance. It may be that Relator’s request is untimely or unreasonable. Relator notes in his petition for mandamus that the MRI scan he requests could be used for purposes of a clemency petition, for example. But section 3(b) also requires that funding for expert assistance further the investigation of a potential habeas claim.[10] If that’s all that Relator wants the MRI for, it seems likely that the habeas court would be within its discretion to deny the funding as unreasonable. But that determination of reasonableness is a ruling on the merits, which has not happened yet. I would conditionally grant Relator’s mandamus petition and order the habeas court to rule on Relator’s request for funds for expert assistance.[11] Because the Court does not, I respectfully dissent. Filed: October 3, 2023 Publish
