                                NUMBER 13-11-00110-CR

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


                                  IN RE: BENITO LOPEZ


                          On Petition for Writ of Mandamus.


                           MEMORANDUM OPINION
                  Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Benavides1

       By petition for writ of mandamus filed on February 25, 2011, relator, Benito

Lopez, pro se, seeks an order requiring the trial court2 to comply with the Interstate

Agreement on Detainers Act (the ―Act‖) and dismiss relator‘s indictment and detainer.

See TEX. CODE CRIM. PROC. ANN. art. 51.14 (Vernon 2006). Relator alleges that he is

presently incarcerated in federal prison in South Carolina and has an outstanding


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          See TEX. R. APP. P. 52.8(d) (―When denying relief, the court may hand down an opinion but is
not required to do so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
       2
          The respondent in this original proceeding is the Honorable Angelica E. Hernandez, Presiding
Judge of the 105th District Court of Kleberg County, Texas.
detainer from Kleberg County, Texas. Relator specifically complains that he has been

denied due process of the law because the District Attorney of Kleberg County has

failed to comply with the Act, and this failure has denied relator the right to a speedy

trial. We deny the petition for writ of mandamus.

                                  I. STANDARD OF REVIEW

       To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet either of these requirements, then the petition for writ

of mandamus should be denied.         See id.     As to the latter requirement, the court of

criminal appeals has stated that it is satisfied ―if the relator can show he has ‗a clear

right to the relief sought‘—that is to say, ‗when the facts and circumstances dictate but

one rational decision‘ under unequivocal, well-settled (i.e., from extant statutory,

constitutional, or case law sources), and clearly controlling legal principles.‖ Id.

       It is relator‘s burden to properly request and show entitlement to mandamus

relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig.

proceeding) (―Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks.‖). In addition to other requirements, relator

must include a statement of facts supported by citations to ―competent evidence

included in the appendix or record,‖ and must also provide ―a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that



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relator must furnish an appendix or record sufficient to support the claim for mandamus

relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a)

(specifying the required contents for the record).

                                     II. BACKGROUND

       Relator asserts that, on June 18, 2009, the Kleberg County Sheriff‘s Office

placed a detainer on relator by mail with the Inmate Systems Records Office at the

Federal Correctional Institution in Fort Worth, Texas, where relator was serving a

federal prison sentence. Relator contends that he filed an ―inmate request to staff‖ at

this prison regarding a motion for a speedy trial in Kleberg County regarding the

detainer; however, the staff at the prison did not respond to relator‘s request. In his

appendix, relator has included a copy of the ―inmate request to staff,‖ which is directed

to ―Bernard P. Waller/Inmate Systems Manager‖ and is dated July 13, 2009. This form

includes the hand-written notation that stated, ―I‘d like to talk to you about my detainer

out of Kleberg County to see if we can take care of it before the BOP moves me farther

away.‖ The document further provides that, ―today 8-21-9 I asked Mr. Waller if [he] had

filed with Kleberg Co. my speedy trial motion and he had not.‖ Relator alleges that he

mailed a motion pursuant to the Act on March 16, 2010 to the Kleberg County District

Court and to the Kleberg County District Attorney, and that these entities received the

motion on March 23, 2010. After waiting 180 days without a response, relator filed a

motion to dismiss for failure to comply with the Act. According to relator, the Kleberg

County authorities still have not responded to his request or motion.




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                      III. INTERSTATE AGREEMENT ON DETAINERS ACT

       The disposition of an interstate detainer is governed by the Act as codified in the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 51. The Act‘s

purpose is to ―encourage the expeditious and orderly disposition‖ of ―charges

outstanding against a prisoner, detainers based on untried indictments, informations, or

complaints, and difficulties in securing speedy trial of persons already incarcerated in

other jurisdictions‖ based on the rationale that such charges and detainers ―produce

uncertainties which obstruct programs of prisoner treatment and rehabilitation.‖ See id.

art. 51.14, art. I. The Act outlines the cooperative procedure between the jurisdictions

to be used when one jurisdiction is seeking to try a prisoner who is currently imprisoned

in another jurisdiction. State v. Votta, 299 S.W.3d 130, 134-35 (Tex. Crim. App. 2009).

When a state with an untried indictment, information, or complaint against a prisoner

files a detainer with the institution in the state that is holding the prisoner, the prison is

required to promptly inform the prisoner that a detainer has been filed against him and

that he has the right to request final disposition of the charges. TEX. CODE CRIM. PROC.

ANN. art. 51.14 art. III(c). The prisoner may then request final disposition by giving

written notice to the warden, who forwards the request, along with a certificate

containing information about the prisoner‘s current confinement, to the prosecuting

officer and the appropriate court of the prosecuting officer‘s jurisdiction. See Votta, 299

S.W.3d at 134-35. Under article III(a) of the Act, the prisoner must then be brought to

trial in the receiving state within 180 days from the date on which the prosecuting officer

and the appropriate court receive this written request for a final disposition, unless a

continuance is granted under the Act. See TEX. CODE CRIM. PROC. ANN. art. 51.14, art.



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III(a); Votta, 299 S.W.3d at 134-35. If the prisoner is not brought to trial within 180 days,

the trial court must dismiss the indictment with prejudice. TEX. CODE CRIM. PROC. ANN.

art. 51.14, art. III(d); Votta, 299 S.W.3d at 134-35.

    Article III of the Act specifies the procedure to be followed when a prisoner seeks a

final disposition of an outstanding indictment, information, or complaint. See TEX. CODE

CRIM. PROC. ANN. art. 51.14, art. III. In summary, the Act provides that:

    1. The person seeking the disposition must cause to be delivered to the
       prosecuting officer and the appropriate court of the prosecuting officer‘s
       jurisdiction written notice of the place of his imprisonment and his request
       for a final disposition.

    2. The request must be accompanied by a certificate of the appropriate
       official having custody of the prisoner, stating the term of commitment
       under which the prisoner is being held, the time already served, the time
       remaining to be served on the sentence, the amount of good time earned,
       the time of parole eligibility of the prisoner, and any decision of the state
       parole agency relating to the prisoner.

    3. The prisoner must send the written notice and request for final disposition
       to the official having custody of him, who must promptly forward it together
       with the certification to the appropriate prosecuting official and court by
       registered or certified mail, return receipt requested.

See id. art. III(a), (b).

                                       IV. ANALYSIS

        In the instant case, the appendix accompanying the petition for writ of mandamus

includes copies of: (1) a letter dated June 18, 2009, from the Kleberg County Sheriff‘s

Office requesting the placement of a detainer on relator for ―POSSESSION OF

COCAINE W/ INTENT TO DELIVER – FAILURE TO APPEAR;‖ (2) a form dated July 8,

2009 entitled ―IAD – Notice of Untried Indictment‖ which informed Lopez about the

detainer and the appropriate procedures to be followed under the Act; (3) the

aforementioned ―inmate request to staff;‖ (4) a ―Motion to Comply with Interstate

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Agreement on Detainers . . . or, In the Alternative to Dismiss Charges;‖ (5) return

receipts indicating service of documents on the District Clerk and District Attorney of

Kleberg County on March 23, 2010; and (5) a ―Motion to Dismiss Charges for Failure to

Comply with the [Act].‖

       We cannot determine from the record before this Court whether the prescribed

and required procedure was followed in transmitting relator‘s documents to the court

and whether the trial court received all of the documentation required by the Act. See

id. art. 51.14, art. III(a), (b). Consequently, we cannot conclude that the trial court has

abused its discretion in failing to rule on relator‘s motion. See id.; see also In re Ivey,

No. 03-10-00693-CV, 2010 Tex. App. LEXIS 9198, at *2 (Tex. App.–Austin Nov. 17,

2010, orig. proceeding) (mem. op.) (―An inmate is not entitled to mandamus relief

dismissing the charges against him under the [Act] if he fails to demonstrate compliance

with the [Act]‘s requirements‖); In re Cantu, No. 04-09-00527-CR, 2009 Tex. App.

LEXIS 7965, at *2 (Tex. App.–San Antonio Oct. 14, 2009, orig. proceeding) (mem. op.,

not designated for publication) (relator must show compliance with provisions of statute

to obtain mandamus relief); In re Montgomery, No. 12-09-00115-CR, 2009 Tex. App.

LEXIS 3092, at *3 (Tex. App.–Tyler May 6, 2009, orig. proceeding) (mem. op., not

designated for publication) (same); In re Hembree, No. 07-05-00320-CV, 2005 Tex.

App. LEXIS 7826, at *2 n.2 (Tex. App.–Amarillo Sept. 23, 2005, orig. proceeding) (mem.

op.) (same); Burton v. State, 805 S.W.2d 564, 575 (Tex. App.–Dallas 1991, pet. ref‘d)

(holding that 180-day timeline under the Act did not begin where court was not notified

of request under the Act).




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                                     V. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly,

relator‘s petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).




                                                       __________________________
                                                       GINA BENAVIDES,
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed this the
9th day of March, 2011.




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