              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. AP-76,443



                   EX PARTE RANDALL LOUIS MCCOY, Applicant



            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. B-16,777A IN THE 173 RD JUDICIAL DISTRICT COURT
                       FROM HENDERSON COUNTY



       Per curiam.

                                           OPINION

       Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to escape and was

sentenced, pursuant to a plea agreement, to five years’ imprisonment. He did not appeal his

conviction.

       Applicant contends that his plea agreement was breached because he is not receiving all the

pre-sentencing jail time credit he was awarded on the judgment. The specific amount of pre-

sentencing jail time credit was an affirmative element of the plea agreement in this case. The amount
of time with which Applicant was to be credited was more than the time he spent in jail on this

particular charge, although Applicant may have been in jail pursuant to another charge that was taken

into consideration in sentencing for this case. The Texas Department of Criminal Justice cannot give

Applicant credit for jail time served prior to the commission of the offense for which he is presently

incarcerated.   See TEX . CODE CRIM . PROC. art. 42.03 §2(a).          Applicant’s plea bargain is

unenforceable, and the State agrees that he is entitled to relief.

       Relief is granted. The judgment in Cause No. B-16,777 in the 173rd Judicial District Court

of Henderson County is set aside, and Applicant is remanded to the custody of the Sheriff of

Henderson County to answer the charge against him.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: November 3, 2010
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