            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                                     NO. WR-83,799-01



                         EX PARTE RICKY MOLINA, Applicant

                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                      IN CAUSE NO. 130705001010 FROM THE
                   174TH DISTRICT COURT OF HARRIS COUNTY


       Y EARY, J., delivered an opinion for the unanimous Court.

                                       OPINION

       This is a post-conviction application for writ of habeas corpus. T EX. C ODE. C RIM

P ROC. art. 11.07. Applicant brings eight claims for relief, including one claim alleging that

the judgment in his case does not adequately reflect credit for the time he served in county

jail before his sentence was pronounced. Applicant, however, does not claim to have

exhausted all his administrative remedies to this alleged error. Under Section 501.0081 of

the Texas Government Code, an applicant must exhaust all administrative remedies before

he may bring a claim in an 11.07 writ application that he is not being properly credited with
                                                                                   MOLINA — 2

time served on his sentence. T EX. G OV. C ODE § 501.0081. This writ application involves the

persistent issue of whether applicants must exhaust their administrative remedies under

Section 501.0081 of the Texas Government Code before they may bring a post-conviction

application for writ of habeas corpus alleging that the judgment is incorrect for failing to

credit them for time that they served in jail before their sentence was imposed.1 We conclude

that such claims are not subject to the Section 501.0081 exhaustion requirement.

                                       BACKGROUND

       Applicant, Ricky Molina, was charged with aggravated robbery. After proceeding to

trial, he was convicted by a jury on January 14, 2014. The jury sentenced him to 16 years’

confinement in the Texas Department of Criminal Justice. Applicant appealed his conviction

to the Fourteenth Court of Appeals, and that court affirmed his conviction. Molina v. State,

No. 14-14-00084-CR, 2015 WL 1544784 (Tex. App.—Houston [14th Dist.] 2015) (mem.

opinion) (not designated for publication).

       Applicant now brings this post-conviction application for writ of habeas corpus

alleging that he is not receiving credit for time he spent in jail before beginning his sentence

for the aggravated robbery conviction. Applicant contends that he was brought before a

magistrate on the same aggravated robbery charge in December 2011. Because he never

bonded out on the charge, he claims, he is entitled to mandatory pre-sentence jail time


       1
        Ultimately, of course, such a writ application would likely be dismissed because the proper
remedy to correct a judgment that incorrectly omitted credit for pre-sentence jail time is through a
judgment nunc pro tunc and, if necessary, a writ of mandamus. Ex parte Ybarra, 149 S.W.3d 147
(Tex. Crim. App. 2004); Ex parte Florence, 319 S.W.3d 695 (Tex. Crim. App. 2010).
                                                                                 MOLINA — 3

credit—which would be almost an additional year of credit if the date on which Applicant

alleges he was initially confined is correct. T EX. C ODE C RIM . P ROC. art. 42.03 § 2(1).

Applicant has not alleged that he has exhausted all of the administrative remedies available

to resolve his time credit complaint. The issue is whether such exhaustion is even necessary

in the context of a claim that the judgment is incorrect.

                                         ANALYSIS

       Under Section 501.0081(b)(1) of the Texas Government Code, “an inmate may not”

bring a claim of a “time-served credit error” in an application for writ of habeas corpus under

Article 11.07 of the Code of Criminal Procedure until he “receives a written decision issued

by the highest authority provided for in the resolution system[.]” T EX. G OV. C ODE § 501.0081

(b)(1). Does the definition of “time-served credit error” include pre-sentence credit errors in

which it is alleged that the trial judge incorrectly entered a judgment that failed to credit the

applicant with time served in jail before the sentence was imposed?

       When the meaning of a statute should have been plain to those to voted on it, “we

ordinarily give effect to that plain meaning.” Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991) (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). But

our precedents require that, “where application of a statute’s plain language would lead to

absurd consequences that the Legislature could not possibly have intended, we should not

apply the language literally.” Id. (citing Faulk v. State, 608 S.W.2d 625, 630 (Tex. Crim.

App. 1980)). In light of these precedents, we must look to see whether the requirement that
                                                                               MOLINA — 4

an applicant receive “a written decision issued by the highest authority provided for in the

resolution system” in the context of a pre-sentence jail time credit claim that a judgment is

incorrect leads to absurd results that could not possibly have been intended.

       Section 501.0081(a) of the Texas Government Code mandates that the Department

of Criminal Justice [hereinafter, “the Department”] “shall develop a system that allows

resolution of a complaint by an inmate who alleges that time credited on the inmate’s

sentence is in error and does not accurately reflect the amount of time-served credit to which

the inmate is entitled.” T EX. G OV. C ODE § 501.0081(a). When we read Section 501.0081 in

its entirety, we understand the phrase “system that allows resolution” in subsection (a) to

refer to the same “resolution system” that is mentioned in Subsection 501.0081(b)(1): “[A]n

inmate may not in an application for writ of habeas corpus under Article 11.07, Code of

Criminal Procedure, raise as a claim a time-served credit error until . . . the inmate receives

a written decision issued by the highest authority provided for in the resolution system[.]”

T EX. G OV. C ODE § 501.0081(b)(1) (emphasis added). Subsection (a) requires the Department

to provide a “resolution system” for resolving time-served credit claims, and that is plainly

the “resolution system” through which, under Subsection (b)(1), an inmate must pass before

he may bring a claim of “time-served credit error” in a post-conviction application for writ

of habeas corpus. But this leaves one question: What about time credit claims that are not

subject to “a system that allows resolution of a complaint by an inmate”? Can Section

501.0081 possibly apply to time-credit claims that the Department has no authority to
                                                                             MOLINA — 5

resolve? We think that it cannot.

         An ordinary time-served credit claim under Section 501.0081 will allege that the

Department is miscalculating the defendant’s time served, which may include miscalculating

the award of pre-sentence time served that is reflected in the judgment, but which assumes

that the judgment itself is correct. Such a claim alleges some mistake on the part of the

Department. Therefore, the Department has the authority and power to remedy the mistake

if the claim is meritorious. If the Department corrects such a mistake, then presumably an

applicant would have no need to file a post-conviction writ application to begin with. It

makes perfect sense to require applicants to go first to the Department—the body that made

the mistake—so that it may resolve the claim and avoid any unnecessary intervention by this

Court.

         On the other hand, a pre-sentence credit claim that alleges that the judgment is

incorrect does not allege that the Department has incorrectly calculated the defendant’s time

served. Rather, such a claim attacks the propriety of the judgment itself. Only the

judiciary—not the Department—has the authority to correct such a judicial error. The

Department has no power to modify a judgment; instead, an incorrect judgment must be

resolved judicially, as we indicated in Ex parte Ybarra, through a nunc pro tunc judgment,

a writ of mandamus if necessary, or, as a last resort, if he “has been incarcerated past his

presumptive discharge date,” a post-conviction application for writ of habeas corpus. 149

S.W.2d at 148-49 & n.2. No resolution system contemplated by Section 501.0081 could alter
                                                                                     MOLINA — 6
a judgment to make it accurately reflect pre-sentence time served.

       Subsection 501.0081(b)(1) might appear to some to embrace all claims of “time-

served credit error,” including claims that the judgment does not accurately reflect credit for

pre-sentence jail time served, as required by Article 42.03 § 2(1). But to interpret it that way

would lead to the absurd and inefficacious requirement that applicants raising such claims

first “receive a written decision issued by the highest authority provided for in the resolution

system[.]” Such a requirement is simply pointless when the “resolution system” set out in

Subsection (a) does not empower the Department to alter a judgment.2 Such a requirement

would make little practical sense and would likely require an applicant’s claim to be

needlessly dragged out before the applicant is finally put on notice of how he should seek

relief.3 Reflecting on these considerations, we must conclude that such an interpretation of

Section 501.0081 would lead to absurd consequences that the Legislature could not have


       2
          Indeed, it is questionable whether it could even be permissible for the resolution system to
try to assert such authority. See TEX . CONST . art. II § 1 (“The powers of the Government of the State
of Texas shall be divided into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive
to another, and those which are Judicial to another; and no person, or collection of persons, being
of one of these departments, shall exercise any power properly attached to either of the others, except
in the instances herein expressly permitted.”).
       3
           If Section 501.0081 applied to such a claim, this Court would have to dismiss a post-
conviction writ application that failed to exhaust the applicant’s non-remedy through the
Department’s resolution system. Then the applicant would have to exhaust his administrative non-
remedy and presumably reapply for post-conviction habeas corpus relief. We would then dismiss his
application under Ybarra. Finally, having been put on notice of Ybarra, the applicant would seek
relief through a nunc pro tunc judgment, or, failing that, by application for writ of mandamus. By
not applying 501.0081 to pre-sentence credit claims, we could initially dismiss the application under
Ybarra and at least better streamline the entire process. Applicants could have their claims reached
on the merits months, maybe even years, earlier.
                                                                                    MOLINA — 7
intended. A claim that a judgment erroneously fails to provide credit for pre-sentence

incarceration—which is not subject to any Department resolution system—cannot be what

the Legislature contemplated when it referred to a “time-served credit error” under 501.0081.

We hold that such a claim is not susceptible to the requirement under Subsection

501.0081(b)(1) that all administrative remedies be exhausted before it may be brought in a

post-conviction writ application.

       Accordingly, if the only claim that an applicant raises in a post-conviction application

for writ of habeas corpus is one that attacks the accuracy of the judgment with respect to pre-

sentence jail-time credit, but he does not claim to have exhausted his administrative

remedies, then we will not dismiss it under Section 501.0081, since that provision does not

apply.4 On the other hand, if the only claim an applicant raises is a time-credit claim that can

be resolved by the Department, but he has not exhausted all of his administrative remedies,

then we will dismiss his application for failure to exhaust under Section 501.0081. Moreover,

if the applicant brings a mixed application—bringing both a time-credit claim that the

Department can correct and a judicial time-credit error that the Department cannot correct

(or, for that matter, any claim attacking the validity of the conviction or punishment)—we

will dismiss his application in its entirety for failure to exhaust. Finally, if it is unclear from

his pleading exactly what kind of time-credit error an applicant is claiming and he has not



       4
          We will still dismiss the claim, of course, but under Ybarra/Florence, see note 1 ante,
unless the applicant has been incarcerated past his presumptive discharge date, in which case we will
entertain the claim on the merits. Ybarra, 149 S.W.3d at 148 n.2.
                                                                                     MOLINA — 8
exhausted his claim under Section 501.0081, then we will also dismiss his entire application

for failure to exhaust.

       So, which of these categories does Applicant’s writ application fall within? Does he

allege that his judgment is incorrect, or that the Department has incorrectly calculated his

time served—or both? Applicant alleges that he was “magistrated for this charge in Fort

Bend County on December 7th , 2011” and that “The Honorable Judge is the one that shall

give defendant credit on his sentence for time that defendant has spent in jail on ‘said cause’

from time of his arrest and confinement until his sentence[.]” The claim that Applicant was

arraigned on December 7, 2011, conflicts with the portion of the judgment reflecting that

Applicant should receive time served starting from October 31, 2012—almost a year later

than December 7, 2011—and running until January 14, 2014. This apparent discrepancy,

coupled with Applicant’s argument that a judge shall give a defendant credit for time spent

in jail starting from his confinement until his sentence, provides sufficient context to justify

the determination that his only time-credit claim is that the judgment is incorrect.

       We conclude that Applicant has shown specific enough facts in his application for us

to conclude that his claim alleges that—and alleges only that—his judgment is incorrect.

Therefore, we dismiss this claim, not under Section 501.0081 of the Texas Government

Code, but under Ybarra and Florence. Applicant’s proper remedy is to seek a nunc pro tunc

judgment or, failing that endeavor, an application for writ of mandamus.5


       5
          As we stated in Ybarra, an applicant may bring a claim that he is being deprived of pre-trial
jail time credit in a post-conviction writ application if, were he to prevail on that claim, it would
                                                                                    MOLINA — 9
       Having reviewed Applicant’s remaining claims, which challenge his conviction, we

deny them. See Ex parte Deeringer, 210 S.W.3d 616, 618 (Tex. Crim. App. 2006) (“[W]hen

a habeas applicant files an initial post-conviction application for writ of habeas corpus raising

both claims challenging the conviction and a claim of the denial of pre-sentence jail-time

credit, we will dispose of the claims challenging the conviction on the merits, either granting

or denying relief as appropriate, and then dismiss the jail-time credit claim unless that claim

is rendered moot by a disposition granting relief on the merits of a claim challenging the

conviction.”).




DELIVERED:             February 10, 2016
PUBLISH




demonstrate that he is being incarcerated past his discharge date; such a claim would “no longer [be]
a time credit claim but an illegal confinement claim.” 149 S.W.3d at 148 n.2. Applicant was
sentenced to sixteen years’ confinement on January 14, 2014, roughly two years ago. If his present
jail-time credit claim is meritorious, he should have received another two years of credit on his
sixteen year sentence. The combination of pre-sentence credit to which Applicant claims he is
entitled and the time he has served since the pronouncement of his sentence amounts to far less than
sixteen years. Even if his claim is meritorious, then, he has not been incarcerated beyond his
legitimate discharge date, and his claim is therefore not presently cognizable in a post-conviction
application for writ of habeas corpus under Article 11.07.
