State Ex Rel. Bryan v. McDonald , 1982 Tex. Crim. App. LEXIS 1118 ( 1982 )

OPINION

McCORMICK, Judge.

This action comes before us on an application for a writ of mandamus. The relator, Travis B. Bryan, III, the district attorney of Brazos County, is seeking a writ of mandamus declaring void an order issued by the respondent, W.T. McDonald, Jr., Presiding Judge of the 85th Judicial District Court, and further directing the respondent to vacate the said order.

The record shows that an individual named Burtis Dockery pled guilty and was convicted of robbery in Cause No. 13,771, the State of Texas v. Burtis Dockery, in the 85th Judicial District Court of Brazos County. On March 16, 1982, the judgment and sentence in that cause number was signed by Judge McDonald. Dockery was transferred to the Texas Department of Corrections on the same day. It was later noted that the judgment and sentence erroneously stated that Dockery had been convicted of aggravated robbery, rather than robbery. Thus, on April 8, 1982, Judge McDonald signed a nunc pro tunc judgment and sentence, thereby correcting the error. This nunc pro tunc judgment and sentence was filed on April 12,1982. Thereafter, in June of 1982, Dockery filed two motions for suspension of sentence (shock probation). On September 17,1982,185 days after Dockery began serving his sentence, the respondent granted Dockery’s motion for shock probation.

The relator argues that the respondent acted without jurisdiction and thus the order granting Dockery shock probation is void. We agree. Article 42.12, Section 3e(a), V.A.C.C.P., provides the following:

“For the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if:

(1) the defendant is otherwise eligible for probation under this article; and

(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony; and

(3) the offense for which the defendant was convicted was other than those defined by Section 19.02, 20.04, 21.03, 21.05, 22.03, 22.04(a)(1), (2), or (3), 29.-03, 36.02, 38.07, 71.02 or a felony of the second degree under Section 38.-10, Penal Code.”

It is clear that the trial court’s jurisdiction to grant shock probation continues only for 180 days from the date the execution of the sentence actually begins. Any action taken by the trial court, after the 180th day is void because the court is acting without jurisdiction.

This is not the first time we have seen such a factual situation. In Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981), a panel of this Court found that the trial court acted without jurisdiction in placing the appellant on shock probation 126 days after commencement of the execution of the sentence when the statute allowed jurisdiction to continue for only 120 days.¹ In Adams v. State, 610 S.W.2d 780 (Tex.Cr.App.1981), another panel of this Court found the trial court acted without jurisdiction when it granted shock probation 133 days after the execution of the sentence actually began. And in Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979), Judge Clinton, writing for the Court en banc, said:

“Section 3e(a) uses language concerning ‘jurisdiction’ of a trial court in this special situation that, once again, is clear and unambiguous....

“Plainly and unequivocally the Legislature sought to accomplish two purposes: One, to expand jurisdiction for 120 days and, two, to require a ruling by the court in the second 60 day period. Taken together the two provisions admit of no other construction than that jurisdiction to act ceases when the 120 day period has expired.” 579 S.W.2d at 219.

See also: Ex parte Thomas Perry Rogers, 629 S.W.2d 741 (Tex.Cr.App.1982).

The amicus curiae advances several arguments in opposition to the granting of this writ of mandamus. Initially, he argues that the 180 day period should be computed from the date the nunc pro tunc judgment and sentence were entered, since the sentence imposed on March 16,1982, assessed a four year term for the offense of aggravated robbery and thus was void. However, the record is clear that Dockery was convicted of robbery, not aggravated robbery. Thus, the sentence he received was not a void sentence. There was merely a clerical error in the preparation of the judgment and sentence.

In Perkins v. State, 505 S.W.2d 563 (Tex.Cr.App.1974), this Court approved the action of the trial court in entering a nunc pro tunc order correcting the judgment and sentence to reflect a conviction for felony theft rather than for burglary as entered originally as a result of clerical error. And, in Gibson v. State, 488 S.W.2d 462 (Tex.Cr.App.1972), this Court approved the trial court’s action in entering a nunc pro tunc order correcting the judgment and sentence to reflect two convictions for sale of heroin, rather than possession of heroin. See also: Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978).

The purpose of a nunc pro tunc order is to correctly reflect from the records of the court a judgment actually made by it, but which for some reason was not entered of record at the proper time. Alvarez v. State, 605 S.W.2d 615 (Tex.Cr.App.1980).

Irregardless, Section 3e(a) provides that for purposes of considering shock probation the jurisdiction of the trial court “shall continue for 180 days from the date the execution of the sentence actually begins.” See, Houlihan v. State, supra. The record clearly shows Dockery began his sentence on March 16, 1982, and any computation must begin from that date.

Next, the amicus curiae argues that mandamus is not available here because the granting of shock probation was a discretionary act. We agree that between 60 days and 180 days after Dockery began serving his sentence the respondent had discretionary authority to grant or deny Dock-ery’s application for shock probation. However, once the 180th day passed, all discretion was removed. At that point, the respondent lost all of his discretionary authority and any decision on Dockery’s motion was purely ministerial. The respondent entered a void order granting shock probation when he had no authority to do so. Under these circumstances, mandamus is available to correct the respondent’s failure to follow the dictates of Article 42.12, Section 3e(a), supra. See: State ex rel Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978).

Finally, the amicus curiae asks us to reconsider our holding in Houlihan v. State, supra, and find that the 180 day period under Article 42.12, Section 3e(a) contemplates only the filing of a motion rather than the ruling of the trial court. This we decline to do.

Thus, we conclude that, according to the clear and unambiguous language of the statute, the respondent was without authority to grant shock probation to Dockery. Accordingly, such order is void.

We accordingly grant relator’s application for writ of mandamus and order the respondent to withdraw its order granting shock probation to Dockery. However, the writ will issue only in the event of a failure to comply with the directives contained herein, since we presume respondent will act accordingly.

It is so ordered.

ROBERTS, J., not participating.

1 . Prior to September 1, 1981, Article 42.12, Section 3e(a) provided the jurisdiction of the trial court would continue for 120 days from the date the execution of the sentence actually began.