I join Presiding Judge Keller's opinion. I write separately to more fully explain my reasons for deciding that the convicting court had no authority or jurisdiction to order DNA testing outside of the procedures set out in Chapter 64 of the Texas Code of Criminal Procedure.

It is undisputed that the evidence of Mr. Patrick's guilt is overwhelming. See Patrick v. State, 906 S.W.2d 481, 485-86 (Tex.Cr.App. 1995) cert. denied, 116 S.Ct. 1323 (1996). This explains why the convicting court declined to order DNA testing under Chapter 64. See Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex.Cr.App. 2002) (Chapter 64 primarily intended to provide convicting court with jurisdiction to order DNA testing when a favorable DNA test "will prove a convicted person's innocence").

The convicting court nevertheless ordered that Mr. Patrick be permitted to have DNA testing by an independent forensic laboratory at his expense. But Texas courts derive their jurisdiction and authority to act from the Constitution and from legislative enactments, and I agree with Judge Keller's opinion that no such authority exists for the convicting court to execute such an order. See Article V, Section 8, Texas Constitution; Austin & N.W.R. Co. v. Cluck, 77 S.W. 403, 405 (Tex. 1903); Shelvin v. Lykos, 741 S.W.2d 178, 182-85 (Tex.App.-Houston [1^st Dist.] 1987, no writ) (district court lacked constitutional, statutory, inherent and implied authority to order blood tests of prisoner charged with aggravated sexual abuse to determine presence of AIDS virus or venereal disease).

It has been suggested, however, that the relator is not entitled to mandamus relief because once Mr. Patrick properly invoked the convicting court's Chapter 64 jurisdiction, the convicting court also acquired the authority to order DNA testing outside of the procedures set out in Chapter 64. Such reasoning would also increase a convicting court's general jurisdiction to order DNA testing for a convicted person like Mr. Patrick who cannot meet the requirements of Chapter 64. To enlarge a convicting court's jurisdiction in such a fashion seems an endless proposition. Once a convicting court has re-acquired jurisdiction under the guise of Chapter 64 authority, what other action might the court feel free to take? Chapter 64 was intended to exonerate the innocent (not allow the guilty to "muddy the waters") by providing a convicting court with jurisdiction to order DNA testing only when a favorable DNA test "will prove a convicted person's innocence." See Kutzner, 75 S.W.3d at 438-39.

Finally, the dissent fashions an interpretation of Chapter 64 which thwarts the Legislative mandate to prevent the unreasonable delay of execution of sentence or the administration of justice. Last minute requests for DNA testing without regard to the promptness of the request, the proximity in time between the request and execution of sentence, or a determination as to when the convicted person could have previously requested DNA testing would pose a hindrance to the Legislative mandate of Chapter 64 opposing unreasonable delay.

With these comments I join Judge Keller's opinion.

Hervey, J.

Filed: September 11, 2002

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