Opinion · Court of Criminal Appeals of Texas
Ex Parte Ybarra
2004 Tex. Crim. App. LEXIS 1801
- Type
- Opinion
- Court
- Court of Criminal Appeals of Texas
- Jurisdiction
- Texas
- Date
- 2004-10-27
- Topic
- general
holding that appropriate procedural vehicle to obtain pre-sentence jail time credit is to present issue to trial court by way of a nunc pro tunc motion and, if trial court fails to respond, to seek mandamus relief in court of appeals | providing that appropriate remedy for denial of motion for judgment nunc pro tunc is to file mandamus petition in court of appeals | providing that 2 appropriate remedy for denial of motion for judgment nunc pro tunc is to file petition for writ of mandamus | providing that appropriate remedy for denial of motion for judgment nunc pro tunc is to file petition for writ of mandamus in court of appeals | providing that appropriate remedy for denial of motion for judgment nunc pro tunc is to file mandamus petition in court of appeals | providing that appropriate remedy for denial of motion for judgment nunc pro tunc is to file petition for writ of mandamus in court of appeals | providing that appropriate remedy for denial of motion for judgment nunc pro tunc is to file petition for writ of mandamus in court of appeals | holding that when trial court fails to award appropriate pre-sentence jail time credit at time sentence is imposed, "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" | holding that when trial court fails to award appropriate pre-sentence jail time credit at time sentence is imposed, “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” | providing that appropriate remedy for order denying motion for judgment nunc pro tunc or failure of trial court to respond to such motion is to file mandamus petition in court 3 of appeals | appeal of denial of nunc pro tunc is by way of a petition for writ of mandamus | trial court has authority to correct judgment to reflect appropriate time credit by nunc pro tunc order and should do so | time credit issues may be “raised and resolved by nunc pro tunc proceedings,” not habeas proceedings | appropriate remedy where jail time credit is allegedly incorrect is to present the issue to the trial court by nunc pro tunc motion | appeal of denial of nunc pro tunc is by way of a petition for writ of mandamus | appeal of denial of nunc pro tunc is by way of a petition for writ of mandamus | appropriate remedy is to present issue to trial court by way of nunc pro tunc motion before seeking mandamus relief from appellate court if trial court fails to respond | “If applicant has been incarcerated past his presumptive discharge date, this is no longer a time 1 According to the judgment of conviction submitted by Paniagua in support of his petition, he was sentenced to “two (2 | “In the event the court fails to award such credit at the time of the sentence imposed, 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.” | inmate seeking pretrial time credit must first request credit for the claimed time by filing a motion for a judgment nunc pro tunc in the convicting court, and if denied, file a petition for writ of mandamus to the appropriate court of appeals | inmate seeking pretrial time credit must first request credit for the claimed time by filing a motion for a judgment nunc pro tunc in the convicting court, and if denied, file a petition for writ of mandamus to the appropriate court of appeals | inmate seeking pretrial time credit must first request credit for the claimed time by filing a motion for a judgment nunc pro tunc in the convicting court, and if denied, file a petition for writ of mandamus to the appropriate court of appeals | “The appropriate remedy in this situation is to require Applicant to present the issue to the trial court by way of a nunc pro tunc motion, as Applicant alleges he has done in this case. If the trial court fails to respond, …” | “The appropriate remedy in this situation
Citator
- Cited by
- 211 opinions
*148 OPINION
PER CURIAM.This is an application for a writ of habe-as corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Chim. PROC., Article 11.07 (West 2004). Applicant was convicted of the offense of attempted sexual assault, aggravated assault on a peace officer, and retaliation. The three convictions resulted from three separate counts in one indictment, cause number CR-94-424. Punishment was assessed at ten years’ confinement to run concurrent for each count. There was no direct appeal.
Applicant contends that he is entitled to 112 days of jail time credit from June 25, 1994, to October 15, 1994, for time spent confined in the county jail from the date of his arrest to the date of his release on bond. Since Applicant alleges he is within 180 days of his presumptive parole date, he fits within an exception enumerated in Tex. Gov’t Code § 501.0081(c) (West 2004). 1 Applicant was sentenced on July 6, 1995, and given back time credit from May 12, 1995, to date of judgment and sentence. Therefore, the time Applicant requests is pre-sentence jail time credit. 2
The Applicant alleges that he has filed a motion for judgment nunc pro tunc in the convicting court, requesting that this pre-sentence jail time be credited to him, but the trial court had not ruled on the motion when he filed the writ application. As a result of the writ filed by Applicant, the trial court issued an order finding that there were no controverted previously unresolved issues of fact material to the legality of the petitioner’s confinement. The trial court did not find that the Applicant had already received the credit by way of a nunc pro tunc order, and the record is silent on what action, if any, the trial court took on the motion.
The trial court is required to grant the Applicant pre-sentence jail time credit when sentence is pronounced. Tex.Code Crim. PROC. art. 42.03 § 2(a) (West 2004). In the event the court fails to award such credit at the time the sentence is imposed, 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. Tex.R.App. P. Rule 23.2. Further, we have held that matters which may be raised and resolved by nunc pro tunc proceedings should not be considered by way of writ of habeas corpus. See Ex parte Pena, 71 S.W.3d 336, 336-337 (Tex.Crim.App.2002) (a claim that a judgment is inaccurate, which is neither a claim of jurisdictional defect nor a violation of constitutional or fundamental rights, is not a basis for habeas relief under article 11.07 of the Texas Code of Criminal Procedure); see also Ex parte Patterson, 139 Tex.Crim. 489, 496, 141 S.W.2d 319, 323 (1940) (a mere irregularity in a judgment may be corrected by nunc pro tunc proceeding, but “the matter was not a subject for the granting of the writ of habeas corpus”) (citing Ex parte Beeler, 41 Tex.Crim. 240, 241, 53 S.W. 857, 857 (1899)).
The appropriate remedy in this situation is to require Applicant to present the issue to the trial court by way of a nunc pro tunc motion, as Applicant alleges he has *149 done in this case. If the trial court fails to respond, Applicant is first required to seek relief in the Court of Appeals, by way of a petition for a writ of mandamus, unless there is a compelling reason not to do so. See e.g. Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App.2008) (when a court of appeals and this Court have concurrent, original jurisdiction of a petition for a writ of mandamus against the judge of a district or county court, the petition should be presented first to the court of appeals unless there is a compelling reason not to do so.)
Accordingly, this application is dismissed.
. The requirement of section 501.0081 is not applicable to mandamus proceedings, since the plain language of the statute states that an applicant is required to exhaust with the Texas Department of Criminal Justice, Correctional Institutions Division, administrative system before filing an application for a writ of habeas corpus.
. If Applicant has been incarcerated past his presumptive discharge date, this is no longer a time credit claim but an illegal confinement claim.