Opinion filed February 17, 2011




                                                         In The


    Eleventh Court of Appeals
                                                      __________

                                               No. 11-11-00007-CR
                                                   __________

                                          IN RE CODY D. BAILEY


                                         Original Mandamus Proceeding



                                   MEMORANDUM                           OPINION
         Relator, Cody D. Bailey, has filed a petition for writ of mandamus pertaining to a motion
for judgment nunc pro tunc he filed in the trial court seeking credit for time served prior to
sentencing. Respondent is Hon. John Weeks, Judge of the 42nd District Court.
         Relator asserts in the petition that he was adjudged guilty of burglary of a habitation on
July 28, 2006, by the 42nd District Court in Cause No. 5996 and sentenced to a term of
confinement in the Institutional Division of the Texas Department of Criminal Justice for four
years. He further asserts that the trial court’s judgment and sentence did not award him any
credit for time served prior to sentencing. On September 21, 2007, relator filed a motion for
judgment nunc pro tunc seeking credit for the time that he alleges he was incarcerated for the
offense prior to sentencing.1 He alleges in his petition that the trial court has refused to rule on
his motion for judgment nunc pro tunc.

         1
           Relator alleges that he was incarcerated for the offense during the following periods: (1) from June 17, 1999, until
June 20, 1999; (2) on August 16, 2000; (3) from June 18, 2002, until June 19, 2002; and (4) from June 1, 2006, until July 28,
2006.
         Relator presents two contentions in his petition. He initially asserts that the trial court
had a ministerial duty to rule on his motion for judgment nunc pro tunc. He additionally
contends that the trial court had a ministerial duty to grant his motion for judgment nunc pro
tunc. He seeks an order from this court directing respondent to reform his judgment and
sentence to include the time credit sought in his motion for judgment nunc pro tunc. We
conditionally grant relator’s request for mandamus relief in part.
         Mandamus relief may be granted in a criminal proceeding if the relator shows that (1) the
act sought to be compelled is purely ministerial and (2) there is no adequate remedy at law to
redress his alleged harm. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (citing De Leon v. Aguilar, 127
S.W.3d 1, 5 (Tex. Crim. App. 2004)).                     The trial court is required to grant the defendant
presentence jail time credit when the sentence is pronounced. TEX. CODE CRIM. PROC. ANN.
art. 42.03, § 2(a) (Vernon Supp. 2010); Ex parte Deeringer, 210 S.W.3d 616, 617 (Tex. Crim.
App. 2006). In the event the trial 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. 23.2; Ex parte Ybarra, 149
S.W.3d 147, 148 (Tex. Crim. App. 2004). “Because the trial court is required to award credit for
presentence time served, the judge’s failure to do so violates a ministerial duty.” In re Daisy,
156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig. proceeding).
         Prior to addressing the merits of relator’s petition, we will address the State’s contention
that his request is moot for being untimely filed. The State contends that relator should have
already completed his sentence because he received a four-year sentence more than four years
ago.    However, an online check of the Texas Department of Criminal Justice’s Offender
Information Detail reveals that relator remains incarcerated for the offense and that his
“Projected Release Date” is October 11, 2011.2 Accordingly, we disagree with the State’s
contention that relator’s requested relief is moot.
         Other than a handwritten notation of “the judge refused to sign” by an unknown author
on a proposed order submitted by relator, the record is silent on what action, if any, the trial court


         2
          The Offender Information Detail report defines “Projected Release Date” as “the date, which is determined by the
TDCJ Institutional Division Records Office, that an offender is projected to be released from incarceration if not released on
parole sooner.”


                                                              2
took on the motion for judgment nunc pro tunc. When a trial court does not respond to a motion
for a nunc pro tunc judgment alleging a failure to grant presentence jail time credit, we may grant
a writ of mandamus requiring the trial court to rule on the motion. Ybarra, 149 S.W.3d at 148.
In addition to seeking an order requiring respondent to rule on the motion for judgment nunc pro
tunc, however, relator also requests that we order respondent to grant the motion. We decline to
order respondent to enter a nunc pro tunc order giving relator the presentence credit he seeks
prior to the trial court ruling on the motion. Relator’s request for presentence credit would be
rendered moot if the trial court grants the motion for judgment nunc pro tunc.
       Accordingly, we conditionally grant relator’s petition for writ of mandamus in part. We
order respondent, Hon. John Weeks, Judge of the 42nd District Court, to enter a written ruling on
relator’s motion for judgment nunc pro tunc. We further order respondent to file in this court a
certified copy of his written ruling within thirty days of the date of this opinion. Should
respondent fail to do so, the writ will issue.


                                                            PER CURIAM

February 17, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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