In Re: Charles R. Harris--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00072-CV
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IN RE: CHARLES R. HARRIS
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Charles R. Harris has filed a petition asking this Court to issue a writ of mandamus against the 8th Judicial District Court. Harris complains the trial court has refused to properly give him sixteen months of jail time credit to which he was entitled for time that he was incarcerated in the Cook County jail in Illinois while under a detainer from the State of Texas, and fifty-seven days that he was held in the Hopkins County jail in Texas awaiting transfer to the Texas Department of Criminal Justice.

To obtain mandamus relief, a relator must demonstrate that (1) he or she has no other adequate legal remedy, and (2) under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). An act is ministerial if it does not involve the exercise of any discretion and the relator has a clear right to relief. See id. The relief sought must be clear and indisputable, such that its merits are beyond dispute. See id. at 927-28.

Harris correctly notes that the controlling authority for the procedure to be followed under these allegations is Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004). The Texas Court of Criminal Appeals recognized that the trial court is required to grant the applicant presentence jail time credit when sentence is pronounced, and that if the court fails to do so, the trial court has the authority to correct the judgment to reflect the appropriate time credit by nunc pro tunc order and should do so. Id. at 148-49; see Tex. R. App. P. 23.2.

The court stated that matters which may be raised and resolved by nunc pro tunc proceedings should not be considered by way of writ of habeas corpus. Id.; see Ex parte Pena, 71 S.W.3d 336, 336-37 (Tex. Crim. App. 2002). The court then held that the appropriate remedy was to require the party to present the issue to the trial court by way of a nunc pro tunc motion. If the trial court declined to rule, the court held that it was then appropriate to seek a writ of mandamus from the court of appeals. Ex parte Deeringer, 210 S.W.3d 616, 617 (Tex. Crim. App. 2006); Ybarra, 149 S.W.3d at 148. Further, because the trial court is statutorily required to award credit for presentence time served, the judge's failure to do so violates a ministerial duty. See Hill, 34 S.W.3d at 927-28; In re Daisy, 156 S.W.3d 922, 924 (Tex. App.--Dallas 2005, orig. proceeding).

In this case, Harris stated in his petition that he had filed a motion with the district court requesting jail time credit for the sixteen-month time period and that the motion was denied. (1) It does not indicate that he sought a nunc pro tunc judgment from the trial court, and it contains no documentation about any of the matters complained of, as required by Tex. R. App. P. 52.3(j). Thus, we have no details about Harris' incarceration either in Illinois or in Texas, and he has provided no documentation or authority to support his suggestion that a detainer in another state in his particular case should properly count as credit against his sentence in Texas.

Harris has not shown himself to be entitled to mandamus relief.

 

We deny the petition.

 

Jack Carter

Justice

 

Date Submitted: June 12, 2007

Date Decided: June 13, 2007

 

1. It is not clear whether Harris also asked for the fifty-seven days' credit at that time.