State ex rel. Thomas v. Banner, 69658

• Decision Date: 11 February 1987
• Docket Number: No. 69658,69658
• Citation: 724 S.W.2d 81
• Parties: STATE of Texas ex rel. F. Duncan THOMAS, District Attorney, Hunt County, Applicant, v. Honorable Paul BANNER, Presiding Judge 345th Judicial District Court, Hunt County, Respondent.
• Court: Texas Court of Criminal Appeals

Page 81

724 S.W.2d 81

STATE of Texas ex rel. F. Duncan THOMAS, District Attorney, Hunt County, Applicant, v. Honorable Paul BANNER, Presiding Judge 345th Judicial

District Court, Hunt County, Respondent.

No. 69658.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 11, 1987.

F. Duncan Thomas, Greenville, for applicant.

Cornel W. Walker, Greenville, for respondent.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Applicant seeks to invoke this Court's original jurisdiction to issue writs of mandamus pursuant to Article 5, Sec. 5 of the Texas Constitution and Art. 4.04, V.A.C.C.P.

On March 24, 1986, George Elva Neal, Jr. plead guilty to four separate felony offenses and was sentenced by respondent to ten years in the Texas Department of Corrections for each offense. The sentences were cumulated by respondent pursuant to Art. 42.08, V.A.C.C.P. The offenses and their respective sentences are as follows:

Cause No. 14,042: Aggravated possession of a controlled substance--amphetamine

Ten years

Cause No. 14,043: Possession of a prohibited weapon

Ten years, sentence to run from the date upon which the sentence in Cause No. 14,042 is completed.

Cause No. 14,094: Possession of a controlled substance--hydromorphone

Ten years, sentence to run from the date upon which the sentence in Cause No. 14,043 is completed.

Cause No. 14,095: Possession of a controlled substance--amphetamine

Ten years, sentence to run from the date upon which the sentence in Cause No. 14,094 is completed.

Neal was transported to the Texas Department of Corrections on April 25, 1986. On October 2, 1986, respondent granted Neal's application for shock probation on all four of the offenses. Applicant has filed this petition for writ of mandamus complaining that the respondent did not comply with Art. 42.12, Sec. 3e, V.A.C.C.P., when he entered the probation orders in Cause Numbers 14,043, 14,094, and 14,095. If respondent did not comply with Art. 42.12, Sec. 3e, supra, it was his ministerial duty to vacate the orders in question. The order granting shock probation in Cause Number 14,042 is not challenged.

In order to decide whether mandamus is an appropriate remedy in this case, we must apply a two-prong test. First, applicant must demonstrate that he has no other adequate remedy at law. State ex rel. Millsap v. Lozano, 692 S.W.2d 470 (Tex.Cr.App.1985). The State's inability to appeal in a criminal case under Tex. Const. art. V, § 26, has been held sufficient to meet this part of the test. State ex rel. Millsap v. Lozano, supra at 481.

The second part of the test requires that the relief sought be in the nature of a ministerial act on the part of the respondent as opposed to a discretionary one. State ex rel. Millsap v. Lozano, supra; State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex.Cr.App.1985). An example of the latter can be found in Washington v. McSpadden, 676 S.W.2d 420 (Tex.Cr.App.1984), where this Court held that a trial court's decision whether to grant probation was a discretionary act. One example of a ministerial act is given in State ex rel. Millsap v. Lozano, supra. In that case a trial court judge entered an order recusing a fellow judge when he had no authority to do so. Because the first trial court judge had no jurisdiction, it was his ministerial duty to vacate the recusal order. Another example of a ministerial act is found in Homan v. Hughes, 708 S.W.2d 449 (Tex.Cr.App.1986). In that case the trial court judge entered an order denying defendant permission to appeal from a nunc pro tunc order. The trial court judge had no authority to deny defendant permission to appeal and therefore it was his ministerial duty to vacate this order. The question we must then answer, to decide if the instant case involves a ministerial act, is whether the respondent had the authority to enter the three probation orders. If he did not have the authority it was his ministerial duty to vacate the orders.

Respondent signed the original judgments on March 24, 1986 and the orders granting shock probation on October 2, 1986. Respondent had lost jurisdiction over the original judgments thirty days after he signed them. See Texas Code of Criminal Procedure, Chapters 40 and 41, repealed Sept. 1, 1986; see now Texas Rule of Appellate Procedure 31(a)(1). If properly invoked, however, Art. 42.12, Sec. 3e, supra, will extend the respondent's jurisdiction:

For the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. [emphasis added].

Thus, a trial court has the jurisdiction to grant shock probation after 60 days but before 180 days from the date the execution of sentence begins.

In order to determine whether the trial court had proper authority to grant shock probation in all four of the sentences, we must determine when each sentence was or would have been executed. In order to address this issue, we may look to Art. 42.08(a), V.A.C.C.P., which provides that when more than one sentence is given to a defendant, the time of execution will differ depending on whether the sentences are cumulative or concurrent Except as provided by Section (b) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly. [emphasis supplied.]

Under this statute, punishments may be cumulated or made to run concurrently. The last phrase, "sentence and execution shall be accordingly," implies that the sentence and execution run as do the punishments, to wit: concurrently or cumulatively. Concurrent sentences will be served at the same time, so according to Art. 42.08, supra, their dates of execution are the same if pronounced on the same day. Cumulative, or consecutive, sentences, however, are served seriatim, one after the other. Thus, the date of execution of cumulative sentences will also follow in series, and execution of the second sentence will not begin until the previous judgment and sentence has "ceased to operate."

Since the trial court ordered the sentences in the four cases to be cumulated, execution of the second sentence occurred only when the first judgment and sentence ceased to operate. Also, execution of the third sentence would occur when the second sentence ceased to operate, and so on. Since the trial court had the authority to grant shock probation in the second case only after the first judgment and sentence had ceased to operate, we must ascertain the time that the first sentence was executed, and also the time that the first judgment expired.

Tackling the sentence issue first, we begin our analysis with this Court's decision in Green v. State, 706 S.W.2d 653 (Tex.Cr.App.1986). In that case, the trial court assessed the defendant's punishment at ten years imprisonment on conviction for aggravated assault, but ordered the imposition of the sentence suspended and placed the defendant on probation for ten years. The trial court then cumulated a...