in Re: Tony Basquez ( 2007 )

NUMBER 13-07-222-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

IN RE TONY BASQUEZ

____________________________________________________________

On Petition for Writ of Mandamus ____________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela Per Curiam Memorandum Opinion ⁽¹⁾

Relator, Tony Basquez, filed a petition for writ of mandamus in the above cause on April 8, 2007, in which he requests that this Court direct the Victoria County District Clerk to amend the trial court record to grant him time credits. ⁽²⁾

Relator contends that he filed a motion for nunc pro tunc with Victoria County and has not received a response. ⁽³⁾ Relator does not complain about the trial court's alleged failure to rule on his motion for judgment nunc pro tunc or request this Court to order the trial court to rule on the alleged motion.

The Court, having examined and fully considered the petition for writ of mandamus and response thereto is of the opinion that relator has not shown himself entitled to the relief sought. The petition generally fails to comply with Texas Rule of Appellate Procedure 52.3 and fails to contain a sufficient appendix. See Tex. R. App. P. 52.3.

Further, to the extent that the petition requests that this Court direct the district clerk to correct the time credits, we do not have mandamus jurisdiction over a district clerk. See Tex. Gov't Code Ann. § 22.221(b); HCA Health Servs. of Tex. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992).

The petition for writ of mandamus is DENIED. See Tex. R. App. P. 52.8(a).   

PER CURIAM

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 10^th day of April, 2007.

1. 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. We note that the granting of credit for jail time has historically been accomplished by post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998). The courts of appeals have no original habeas corpus jurisdiction in post-conviction criminal matters. Tex. Gov't Code Ann. § 22.221; Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.-San Antonio 1999, no pet.).

3. In its statement regarding jurisdiction, relator's petition for writ of mandamus asserts that: "Petitioner filed motion for nunc pro tunc with Victory [sic] County on 4-14-06 with no response." The petition fails to include a copy of this motion. See Tex. R. App. P. 52.3(j), 52.7. We assume that the motion for nunc pro tunc addressed the issue of correction of the time credits.