IN RE: GRACIANO ALVAREZ--Appeal from 389th District Court of Hidalgo County

NUMBER 13-05-066-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE GRACIANO ALVARADO

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On Petition for Writ of Mandamus _______________________________________________________

MEMORANDUM OPINION

Before Justices Hinojosa, Garza, and Wittig //

Per Curiam Memorandum Opinion //

Relator, Graciano Alvarado, filed a petition for writ of mandamus in the above cause on February 2, 2005. The Court requested that the real party in interest, the State of Texas, by and through the Criminal District Attorney in and for Hidalgo County, Texas, file a response to relator s petition for writ of mandamus on or before February 21, 2005. The real party in interest filed a motion for extension of time to file its response. The Court grants this motion, and the real party in interest s response was filed on March 4, 2005.

The Court, having examined and fully considered the petition for writ of mandamus and response thereto, is of the opinion that relator has not shown himself entitled to the relief sought.

Through his petition for writ of mandamus, relator seeks to compel the Honorable Leticia Lopez, presiding judge of the 389th Judicial District Court of Hidalgo County, Texas, to credit him for time served. According to relator, he has filed a petition requesting that Judge Lopez enter a judgment nunc pro tunc correcting the amount of time relator served. // However, the judgment signed by Judge Lopez on December 9, 2002, previously credited relator with 188 days of jail time. Thus, we are not presented with a factual situation where the judge has failed to give the inmate proper pre-sentence jail time credit in the judgment. See Ex Parte Ybarra, 149 S.W.3d 147, 148-149 (Tex. Crim. App. 2004) (trial court has authority to correct judgment to reflect appropriate time credit by nunc pro tunc order and should do so). Although couched in terms of compelling the trial court to enter an order nunc pro tunc, relator actually seeks to compel the trial court to order the Texas Department of Criminal Justice, Institutional Division, to properly credit his jail time (already reflected in the judgment). // Relator gives no indication that he has sought administrative relief from the agency in question.

The Texas Government Code Section 501.0081 sets forth the proper procedure to be followed in resolving complaints regarding time-served credit. See Tex. Gov't Code Ann. 501.0081 (Vernon Supp. 2004-05). Relator apparently has not utilized this available remedy.

Because Gutierrez has not shown that he has exhausted his administrative remedies, we DENY his petition for writ of mandamus. Tex. R. App. P. 52.8(a); see In re Gutierrez, No. 04-04-00144-CV, 2004 Tex. App. LEXIS 2395, *2 (Tex. App. San Antonio Mar. 17, 2004, orig. proceeding) (designated for publication).

PER CURIAM

Do not publish.

Tex.R.App.P.47.2(b)

Memorandum Opinion delivered and filed

this 29th day of April, 2005.