NO. WR-68,918-03

BRIAN LYNN SMITH, Relator

v.

THE HONORABLE JERRY D. RAY, JUDGE OF THE 29TH JUDICIAL DISTRICT COURT, Respondent

Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that on January 15, 2010, he filed a motion for DNA testing and the appointment of counsel under Chapter 64 of the Code of Criminal Procedure and that the Respondent has not ruled on his motion.

On April 6, 2011, we held this application in abeyance and ordered the Respondent, Judge of the 29th Judicial District Court of Palo Pinto County, to file a response with this Court. We directed the Respondent to state whether Relator had filed a proper motion under Chapter 64 and whether the Respondent had ruled on his motion. If the Respondent had not ruled on his motion, we directed him to state the reasons for his failure to do so.

On April 11, we received a copy of the Respondent's order denying Relator's motion, and on April 28, we received a written response from the Respondent. Because the Respondent has ruled on Relator's motion, we deny leave to file. We note, however, that the record appears to indicate that the Respondent was the prosecutor in these cases. If the Respondent was in fact the prosecutor, he had a statutory duty to disqualify himself. Tex. R. Civ. P. 18(b)(1).

Filed: May 25, 2011

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