Kopeski v. Martin, 68929

• Decision Date: 17 February 1982
• Docket Number: No. 68929,68929
• Citation: 629 S.W.2d 743
• Parties: Mark L. KOPESKI, Applicant, v. John MARTIN, Judge, 9th Judicial District Court and Joe Corley, Sheriff, Montgomery County, Respondents.
• Court: Texas Court of Criminal Appeals

Page 743

629 S.W.2d 743

Mark L. KOPESKI, Applicant, v. John MARTIN, Judge, 9th Judicial District Court and Joe

Corley, Sheriff, Montgomery County, Respondents.

No. 68929.

Court of Criminal Appeals of Texas, En Banc.

Feb. 17, 1982.

Murry B. Cohen, Houston, for applicant.

James H. Keeshan, Dist. Atty. and William H. Behler, Jr., Asst. Dist. Atty., Robert Huttash, State's Atty., Austin, for respondents.

Before the court en banc.

OPINION

ROBERTS, Judge.

Kopeski has filed in this court an original application for a writ of mandamus to the respondent judge and sheriff, or a writ of habeas corpus. His basic complaint is that he is being denied time credits, to which he is entitled, against his misdemeanor sentence.

He alleges that he "served two days in the county jail immediately upon his arrest." He was indicted for the third-degree felony offense of theft but, according to the certified copy of the judgment and sentence which is attached to the application, "the Court on its own motion reduced the offense to the misdemeanor offense of Theft, Class 'A'." On October 16, 1981, the applicant waived his right of trial by jury and pleaded guilty. The trial court heard evidence, found the applicant guilty, assessed punishment at "confinement in the Montgomery County jail for 21 days, with credit allowed for jail time previously served, to be served Jan. 4-25, 1982 and a fine of Seven Hundred Fifty ($750.00) dollars. and restitution of $500.00 to Virgil Foster, Gulf States Utilities, Conroe, Texas, payable (today)." (Punctuation sic) It was therefore adjudged that the applicant was guilty of class A misdemeanor theft, "that he be punished by confinement in the Montgomery County jail for 21 days, with credit allowed for jail time previously served, and a fine of Seven Hundred Fifty dollars, and restitution of $500.00 and that the State of Texas do have and recover of the defendant $111.00 cost of court ...."

The sentence was pronounced on the same day. It ordered that the applicant "be delivered to the Sheriff of Montgomery County to be confined in the Montgomery County jail for 21 days, with credit allowed for jail time previously served; sentence to be served from 1/4/82 until 1/25/82." The sentence further ordered that the applicant pay the fine, restitution, and costs.

The applicant alleges that he has paid the fine, restitution, and costs. He alleges that he reported to the jail on January 4, 1982, that he has "worked every day since," and that he "has had no incidents of misconduct resulting in loss of good time or work time." He alleges that the respondents have told him that they will detain him until January 25, 1982. He also alleges that two sheriff's deputies "having responsibility for operating Montgomery County jail" have told his counsel "that they will detain (him)" for the entire 21 days, as ordered in the sentence.

The applicant argues that his sentence should have been satisfied on January 10, 1982, if he had been given the credits to which he was entitled for the two days he served in jail when he was arrested and the credits to which he was entitled under V.A.C.C.P. Article 43.10 (for doing manual labor) and V.A.C.S. Article 5118a (for good conduct). On January 11, 1982, we granted leave to file the application, and we ordered the applicant released on personal bond which was conditioned on his obedience to our final order.

The respondents have filed an unverified answer in which they deny that the applicant served two days in jail when he was arrested; they claim that he was confined for only part of one day. They make other allegations of fact about the plea-bargaining process in the theft case, but these will not be material to our disposition of this application.

The application presents four claims for mandamus relief: that the trial judge had no authority to command the sheriff to deny time credits, that the sheriff has a duty to credit the applicant for two days of pre-trial confinement, that the sheriff has a duty to credit the applicant for manual labor, and that the sheriff has a duty to credit the applicant for good conduct. We can sustain only the first claim.

Before 1978, this Court's mandamus powers were limited to the enforcement of its own jurisdiction. See, e.g., Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970). On January 1, 1978, Article V, Section 5, of the Texas Constitution was amended to give this Court the general power to issue the writ of mandamus in criminal law matters. Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978). The amendment to Article V, Section 5, which took effect on September 1, 1981, retained this mandamus power regarding criminal law matters such as the one now before us. We have jurisdiction of the subject matter. We also agree with the applicant that he has no other remedy than mandamus, at least on his first claim.

Three principles of mandamus law control the disposition of the applicant's claims. The first is that a writ of mandamus will issue only to compel the performance of a ministerial duty, but it will not issue to compel a discretionary act. Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979); State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). A second principle is, "In mandamus actions greater certainty of the pleadings and the facts to be established by modes appropriate in appellate courts (is) required. * * * Every fact necessary to show why the relator is entitled to the relief sought must be set out in the petition clearly, fully, and unreservedly, by direct and positive allegations. The facts material to the proceeding must be presented by such a positive statement of knowledge by affiant(s) as would constitute a basis for a charge of perjury if the facts were found to be untrue." Wright v. Valderas, 575 S.W.2d 405, 407 (Tex.Civ.App.-Fort Worth 1978, no writ). Accord, 37 Texas Jurisprudence 2d "Mandamus," Sections 96-97 (1962). A third principle is that, when application is made to an appellate court which has limited fact-finding abilities, the writ must not depend on the determination of a doubtful question of fact. 37 Texas Jurisprudence 2d "Mandamus," Section 66 (1962) (Texas Supreme Court will not exercise mandamus jurisdiction if writ depends on disputed question of fact). Cf. Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967) (Court of Criminal Appeals has no effective procedure for fact-finding). We shall apply these principles to the applicant's claims for mandamus relief.

His first claim is that the trial judge had no authority to command the sheriff to deny time credits. This claim is well taken. The respondent judge pronounced in the sentence that the applicant should "be delivered to the Sheriff of Montgomery County to be confined in the Montgomery County jail for 21 days, with credit allowed for jail time previously served; sentence to be served from 1/4/82 until 1/25/82." The emphasized words have the effect of making it impossible for the applicant to receive time credits under V.A.C.C.P. Article 43.10(6) or V.A.C.S. Article 5118a. The former statute creates an entitlement to credits against a misdemeanor sentence to jail: "For each day of manual labor, in addition to any other credits allowed by law, a prisoner is entitled to have one day deducted from each sentence he is serving." The latter statute gives the sheriff authority to grant time credits: "Commutation of time for good conduct, industry and obedience may be granted the inmates of each county jail by the sheriff in charge." The trial judge had no authority to place a limit on the operation of these statutes by fixing the time for the discharge of the sentence. Cf. State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex.Cr.App.1971) (only sheriff, not judge, has authority to grant commutation under Article 5118a). His authority was only to pronounce sentence. "The sentence is that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law." V.A.C.C.P. Article 42.02. The sentence pronounced...