in Re David Cleo Richard ( 2014 )

Opinion issued July 29, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00525-CR
———————————
IN RE DAVID CLEO RICHARD, Relator
Original Proceeding on Petition for Writ of Mandamus1
MEMORANDUM OPINION
On June 25, 2014, Relator David C. Richard filed a pro se petition for writ of
mandamus requesting the Texas First Court of Appeals issue an order to the trial
court to award four years of credit on sentence, set aside good-conduct time and
send a correct commitment to the Texas Department of Criminal Justice and The
Board of Pardon and Parole. We deny the petition.
1
The underlying case is State v. Richard, cause number 473584, in the 232nd District
Court of Harris County, Texas. The underlying case has previously been appealed in
Richard v. State, 788 S.W.2d 917 (Tex. App. – Houston [1st Dist.] 1990).
APPLICABLE LAW
We may issue all writs of mandamus, agreeable to the principles of law
regulating those writs, against a judge of a district or county court in our district.
TEX. GOV'T CODE ANN. § 22.221(b) (West 2004). We may also issue writs of
mandamus and all other writs necessary to enforce our jurisdiction. TEX. GOV'T
CODE ANN. § 22.221(a) (West 2004). Mandamus issues only to correct a clear
abuse of discretion or the violation of a duty imposed by law when there is no
other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
However, relator's request for an opinion that finds that he should receive an award
of four years credit on sentence, have time set aside for good conduct and second a
corrected commitment to the Texas Department of Justice and The Board of
Pardon and Parole does not fall within our mandamus authority. See TEX. CONST.
art. V, § 6; Gonzales v. State, 864 S.W.2d 522, 523 (Tex. Crim. App. 1993);
Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988).
This Court has no mandamus jurisdiction over the Texas Department of
Criminal Justice and the award of time served or good time credits. See TEX.
GOV'T CODE ANN. § 22.221 (West 2004). The granting of credit has historically
been accomplished by post-conviction writ of habeas corpus. See TEX.CODE CRIM.
PROC. ANN. art. 11.07 (West 2005); Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim.
App. 1998).
2
Even if we were to consider relator's request as a petition for writ of habeas
corpus, we have neither original habeas corpus jurisdiction in criminal cases, nor
post-conviction habeas corpus jurisdiction in felony cases. See Board of Pardons
& Paroles ex rel. Keene v. Court of Appeals for the Eighth District, 910 S.W.2d
481, 483 (Tex. Crim. App. 1995); TEX.CODE CRIM. PROC. ANN. art. 11.07, § 3
(West 2005). Accordingly, the petition for writ of mandamus is therefore denied.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
3