dissenting.
I dissent from the majority holding because, in my opinion, the relator’s petition does not warrant the issuance of a writ of mandamus.
I agree, however, with the majority’s conclusion that this Court lacks jurisdiction to issue a writ of prohibition under the circumstances presented.
Mandamus is an extraordinary writ that will issue only when a clear abuse of discretion is shown. Rash v. City Council of Houston, 557 S.W.2d 324, 325 (Tex.Civ. App. — Houston [1st Dist.] 1977, writ ref’d n.r.e.); State v. James, 494 S.W.2d 956, 958 (Tex.Civ.App. — Houston [1st Dist.] 1973, orig. proceeding). Thus, the remedy is not available unless the relator proves an actual default in the performance of a clear, legal duty. Ingleside v. Johnson, 537 S.W. 2d 145, 150 (Tex.Civ.App. — Corpus Christi 1976, orig. proceeding).
Mandamus is an appropriate remedy to compel the performance of an official duty, but it will not issue before the time for performance has arrived. Love v. Wilcox, 119 Tex. 256, 279, 28 S.W.2d 515, 526 (1930); Barnhart v. Bertron, 356 S.W.2d 390, 392 (Tex.Civ.App. — Houston 1962, orig. proceeding). Accordingly, mandamus cannot be used to vacate a judge’s order until an actual ruling has been issued on the particular issue. Moody v. Jones, 519 S.W.2d 536 (Tex.Civ.App. — Austin 1975, orig. proceeding). Unless the judge has ruled on the issue, it must be assumed that the judge will perform his or her duty under the law, even though the record indicates a predetermination to take some par: ticular action. Love v. Wilcox, 28 S.W.2d at 526.
In this case, the trial judge’s order does not show that the judge ever ruled on which persons or entities would be entitled to see the blood test results. To the contrary, the order expressly provides that the test results were to be “sealed and conveyed only to the Court,” and that “the Court will determine the disclosure of said information.” The order clearly shows that the judge has not ruled on the issue of disclosure, and therefore, we have no basis for the issuance of a writ of mandamus.
The trial judge’s comments, made at the hearing on the State’s motion, do indicate a predisposition to disclose the information to certain categories of persons. But because the judge did not actually rule on the issue, we must assume that she will follow the law when she makes that determination. Love v. Wilcox, 28 S.W.2d at 526.
The majority opinion recognizes the enactment of recent legislation that expressly authorizes the courts, under certain circumstances, to order blood tests taken and to distribute the results of such tests, when an accused person is suspected of having a communicable disease such as AIDS. Tex. *186Code Crim.P. 21.31, 1987 Tex.Sess.Law Serv. 375-76 (Vernon), effective September 1, 1987. Although this statute speaks prospectively, I think the trial judge may look to its provisions for guidance in deciding the appropriate recipients of the blood test results. Indeed, this statute merely adds to a district judge’s existing authority to assure medical treatment of jail inmates and to protect against the spread of communicable diseases in the jail.1
The majority concludes that the trial judge’s order is void based on the premise that the trial judge lacked statutory, constitutional, or inherent power to order the taking and testing of relator’s blood. In my opinion, the trial court had constitutional jurisdiction over the proceeding, because jurisdiction had not been conferred by the constitution or other law on some other court, tribunal, or administrative body. Richardson v. First Nat. Life Ins. Co., 419 S.W.2d 836 (Tex.1967); Tex. Const, art. V. sec. 8. Accordingly, I believe that it was within the realm of the district judge’s authority to order, under appropriate circumstances, the taking and testing of an inmate’s blood. Because those matters occurred before relator’s writ was filed with this Court, the issue is moot, and I express no view on whether there was a reasonable basis for that action to be taken.2
The relator is not without a remedy to protect himself against unauthorized disclosure of the test results, and the trial judge, upon proper motion and hearing, is empowered to grant any relief that can be afforded by a court of law or equity. Tex.Gov’t. Code sec. 24.008 (Vernon Supp.1987). Insofar as the record reflects, the relator has not asked for a hearing on the issue of disclosure, and until the trial judge rules on that issue, there is no basis for the issuance of a writ of mandamus.
Therefore, it is my opinion that the relator’s petition for writ of mandamus is premature, and that the majority improvidently granted leave to file. I would deny relator’s petition without prejudice to its refiling should circumstances later warrant.
. The safekeeping of an accused person during confinement is subject to the order of the district court. Tex.Rev.Civ.Stat.Ann. art. 5116 (Vernon 1987), and Texas statutes have long provided for the protection of jail staff and inmates against communicable diseases. See Tex.Rev.Civ.Stat.Ann. art. 5115 (Vernon 1987); see also Tex.Rev.Civ.Stat.Ann. art. 4445d (Vernon Supp.1987).
. See Ferguson v. Cardwell, 392 F.Supp. 750, 752 (D.Ariz.1975) (holding that the penal process necessarily constitutes a significant imposition upon inmate privacy, and that the taking of blood samples does not violate a prisoner's right to due process or constitutional protection against unreasonable searches and seizures); see also Dufrin v. Spreen, 712 F.2d 1084 (6th Cir.1983) (body cavity search of female pretrial detainee); Lee v. Downs, 470 F.Supp. 188 (E.D. Va.1979), aff’d, 641 F.2d 1117 (4th Cir.1981) (body cavity search of suicidal inmate).