Opinion
No. 10-04-00128-CR
Opinion delivered and filed October 20, 2004. DO NOT PUBLISH.
Original Proceeding
Writ conditionally issued.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Charles Larry Ryan seeks a writ of mandamus to compel the State to comply with the Interstate Agreement on Detainers (IAD). TEX. CODE CRIM. PROC. ANN. art 51.14 (Vernon 1979).
The State, the real party in interest, has responded with copies of a motion and order dismissing the trial court case, No. M200300270, styled The State of Texas v. Charles Larry Ryan. The response-letter states that the dismissal is "in accordance with Title 18, United States Code, Appendix 2, Interstate Agreement on Detainers." The accompanying order is, however, "without prejudice."
The IAD requires that a dismissal that falls within its parameters be "with prejudice." Thus, Ryan is entitled to the relief he seeks. We will conditionally issue the writ.
Respondent must enter an order dismissing the trial court case "with prejudice." If an amended order is not filed with the clerk of this court within fourteen days after the date of this opinion, the Clerk shall issue the writ.
DISSENTING OPINION
This is an original proceeding for a writ of mandamus. The "let's just do it" attitude of the majority's opinion evidences a total lack of regard for the actions required of a relator in order to obtain a writ or of a criminal defendant to enjoy the benefits of the statute regulating the transfer of prisoners among jurisdictions. The majority decides the proceeding based on events that occurred after the petition was filed, on documents that are not in the record, and on issues that Relator has not briefed, and misconstrues or misapplies the statute. It is hard to imagine how the majority could make more errors in a single proceeding.
Relator, Charles L. Ryan, has filed a Petition for Expeditious Mandamus, in which he seeks a writ compelling Respondent, Hon. William R. Anderson, Jr., Judge of Johnson County Court at Law No. 2, to dismiss a warrant, as Relator argues, pursuant to the Interstate Agreement on Detainers Act. See Interstate Agreement on Detainers Act ("IADA"), 18 U.S.C. app. (2000), 18 U.S.C.A. app. 2 (2000) (federal IADA); see also TEX. CODE CRIM. PROC. ANN. Art. 51.14 (Vernon 1979) (Tex. IADA). The Interstate Agreement on Detainers ("IAD") is an "interstate compact" that "establish[es] procedures for resolution of one State's outstanding charges against a prisoner of another State." Alabama v. Bozeman, 533 U.S. 146, 148 (2001); New York v. Hill, 528 U.S. 110, 111 (2000); see State v. Williams, 938 S.W.2d 456, 460 (Tex.Crim.App. 1997); State v. Sephus, 32 S.W.3d 369, 375 (Tex.App.-Waco 2000, pet. ref'd).
Contrary to the majority's statement, ( cf. In re Ryan, No. 10-04-00128-CR, slip op. at [1] (Tex.App.-Waco Oct. 20, 2004, orig. proceeding [no mand h.]) (majority op.) (not designated for publication)), the State of Texas is not both respondent and real party in interest, cf. TEX. R. APP. P. 3.1(h), 52.2. Relator does not seek "to compel the State to comply with the Interstate Agreement on Detainers," ( cf. slip op. at [1]); or, if he does, the Court lacks jurisdiction to issue the writ. The Court, indeed, lacks jurisdiction to issue the writ against the State, except perhaps where necessary to enforce the Court's jurisdiction. Cf. TEX. GOV'T CODE ANN. § 22.221(a)-(b) (Vernon 2004). Mandamus "jurisdiction does not extend to governmental bodies, as opposed to government officials." See A T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 686 (Tex. 1995) (orig. proceeding) (Hecht, J., dissenting) (Supreme Court jurisdiction).
Judge Anderson is Respondent, the person or party "against whom relief is sought." TEX. R. APP. P. 3.1(h)(2), 52.2. Relator's petition is styled, "Charles L. Ryan, Petitioner, vs. Honorable Bill Anderson, Johnson County Court at Law #2, Cleburne, Texas, Respondent." (Pet. at [1].) In the petition, Relator moves for "an order of mandamus compelling Judge Bill Anderson, County Court at Law #2, Cleburne, Tx. to dismiss with prejudice Warrant # M200300270." ( Id. at 4.) The State of Texas, by and through Bill Moore, County Attorney of Johnson County, is Real Party in Interest, a "person whose interest would be directly affected by the relief sought." TEX. R. APP. P. 52.2.
When I refer to the Interstate Agreement on Detainers Act or IADA without qualification, I refer to the federal Act. See IADA, 18 U.S.C. app. § 1 (2000).
The majority's application of the law to the facts of this case, in its entirety, is as follows:
The IAD requires that a dismissal that falls within its parameters be "with prejudice." Thus, Ryan is entitled to the relief he seeks.
( In re Ryan, No. 10-04-00128-CR, slip op. at [1] (Tex.App.-Waco Oct. 20, 2004, orig. proceeding [no mand h.]) (majority op.) (not designated for publication)); see IADA, 18 U.S.C. app. § 2, arts. III(d), IV(e), V(c); see also TEX. CODE CRIM. PROC. ANN. Art. 51.14, arts. IV(e), V(c).
I refer to Articles of the Texas Code of Criminal Procedure as Articles (capitalized), and articles of the Texas IADA as articles (not capitalized).
I respectfully dissent. Like a first-year law student, the majority leaps directly to the issue of the remedy, without considering the necessary prerequisite issues of whether Relator's case "falls within [the] parameters" of the IADA, or how Relator is "entitled" to relief. ( Cf. slip op. at [1].) Here, those prerequisite issues comprise all of the core issues of mandamus practice, including Relator's failure to serve the parties, Relator's failure to file a record, Relator's failure to present his request to Respondent, the absence of any abuse of discretion by Respondent, and the "fundamental tenet" of mandamus practice — Relator's adequate remedies at law; as well as issues of IADA practice. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (quoting Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding)). I. WE SHOULD STRIKE OR DISMISS THE PETITION.
The Texas Court of Criminal Appeals "look[s] to the Supreme Court of Texas for guidance in" mandamus law. Perkins v. Court of Appeals, 738 S.W.2d 276, 285 (Tex.Crim.App. 1987) (orig. proceeding).
In the first place, we should strike or dismiss Relator's petition. It does not show that Relator served Real Party in Interest, namely the State of Texas in the person of Bill Moore, County Attorney of Johnson County. On June 21, 2004, this Court's Clerk notified Relator that the petition "does not conform with the requirements of the Rules of Appellate Procedure because it does not contain a certificate of service indicating that relator has provided a copy of the petition to the respondent or the real party in interest" (citing TEX. R. APP. P. 9.5). The Clerk further notified Relator, "If relator fails to correct these deficiencies within 10 days after the date of this letter, the petition will be struck" (citing TEX. R. APP. P. 9.4(i)). On July 9, 2004, Relator tendered a Certificate of Service to the effect that he had served Respondent, but did not certify that he had served Real Party in Interest. Nor does Relator suggest that he served his untimely Appendix even on Respondent. We have allowed Relator an adequate opportunity to correct those deficiencies. Accordingly, we should strike the petition. See TEX. R. APP. P. 9.4(i), 9.5; In re Galer, No. 10-04-00134-CR, 2004 Tex. App. LEXIS 7062 (Tex.App.-Waco Aug. 4, 2004, orig. proceeding) (mem. op.) (per curiam) (striking petition); In re Thomas, No. 10-03-164-CV, 2003 Tex. App. LEXIS 4805, at *1 (Tex.App.-Waco May 29, 2003, orig. proceeding) (mem. op.) (per curiam) (striking petition); but see In re Arledge, No. 10-02-072-CR, slip op. at 2 (Tex.App.-Waco Apr. 24, 2002, orig. proceeding) (not designated for publication) (per curiam) (denying petition); In re Hensler, 27 S.W.3d 719, 720 (Tex.App.-Waco 2000, orig. proceeding) (per curiam) (denying petition).
In the alternative, we should dismiss the petition. See In re State, 26 S.W.3d 759, 760 (Tex.App.-Waco 2000, orig. proceeding) (Gray, J., dissenting).
II. WE SHOULD DENY THE PETITION.
In the alternative, we should deny the petition. Relator failed to comply with both procedural and substantive requirements of mandamus law. A relator is not eligible for a writ of mandamus unless he or she satisfies the procedural and substantive requirements for the writ, "no matter how much his situation might tug at judicial heartstrings." De Leon v. Aguilar, 127 S.W.3d 1, 6 (Tex.Crim.App. 2004) (orig. proceeding).
The courts of appeals are authorized to issue writs of mandamus. TEX. CONST. art. V, § 6(a); TEX. GOV'T CODE ANN. § 22.221(a)-(b) (Vernon 2004). "The writ of mandamus is `[a] writ issued by a superior court to compel a lower court or government officer to perform mandatory or purely ministerial duties correctly." In re Chu, 134 S.W.3d 459, 461 (Tex.App.-Waco 2004, orig. proceeding) (quoting BLACK'S LAW DICTIONARY 973 (7th ed. 1999)); see BLACK'S LAW DICTIONARY 980 (8th ed. 2004).
Yet "mandamus is an extraordinary remedy." De Leon, 127 S.W.3d at 6. "As the name implies, extraordinary writs issue `only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.'" Holloway, 767 S.W.2d at 684 (quoting [James B.] Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas [3, at] § 1.4[1][b] ([Orville C. Walker ed.,] 2d ed. 1979)) (bracketed "[1][b]" in orig.). Thus mandamus is "to be used sparingly." Guerra v. Garza, 987 S.W.2d 593, 594 (Tex.Crim.App. 1999) (orig. proceeding). The issuance of the writ of mandamus "is never a matter of right but rests in the sound discretion of the Court." Smith v. Gohmert, 962 S.W.2d 590, 592 (Tex.Crim.App. 1998) (orig. proceeding). Courts thus take a "cautious view of the mandamus remedy." State ex rel. Sutton v. Bage, 822 S.W.2d 55, 56 (Tex.Crim.App. 1992) (orig. proceeding).
II. A. Relator fails to comply with procedural mandamus requirements.
Relator fails to comply with several of the procedural requirements for the issuance of the writ of mandamus. Besides the failings noted above that call for denial, ( see supra Part I; Arledge, No. 10-02-072-CR, slip op. at 2; Hensler, 27 S.W.3d at 720), Appellant fails to file a record, an Appendix, or affidavits.
Besides the failings stated below, Relator also fails to comply with Rule of Appellate Procedure 52.7, which provides, "Relator must file with the petition . . . a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained [sic]." See TEX. R. APP. P. 52.7(a), (a)(2). I overlook this failure; since the record does not show that Relator presented his request to Respondent, it would not be likely that Respondent heard testimony or received evidence on the matter. I note, however:
In ruling on a motion to dismiss with prejudice based on alleged violations of the [Interstate] Agreement [on Detainers], it is proper for the trial court to hold a pretrial evidentiary hearing to determine whether a detainer was filed against the defendant and, if a detainer was filed, to determine whether the provisions of the Agreement were violated.
State v. Williams, 573 N.W.2d 106, 110 (Neb. 1997).
II. A. 1. Relator fails to present a record.
Relator has failed to provide the Court with a record sufficient to establish his right to mandamus relief. "As the parties seeking relief, [relators] ha[ve] the burden of providing th[e] Court with a sufficient record to establish their right to mandamus relief." Walker, 827 S.W.2d at 837; accord TransAmerican Natural Gas Corp. v. Flores, 870 S.W.2d 10, 11 (Tex. 1994) (orig. proceeding); In re Mendoza, 131 S.W.3d 167, 168 (Tex.App.-San Antonio 2004, orig. proceeding); In re Davidson, No. 07-04-0040-CV, 2004 Tex. App. LEXIS 1672, at *1-*2 (Tex.App.-Amarillo Feb. 19, 2004, orig. proceeding) (underlying criminal case); In re Villarreal, 96 S.W.3d 708, 711 (Tex.App.-Amarillo 2003, orig. proceeding) (underlying criminal case). Accordingly, we should deny the petition.
II. A. 1. a. Relator fails to file a record.
First, Relator has failed to provide the Court with a record, strictly speaking, at all. The Texas Rules of Appellate Procedure provide that "Relator must file with the petition . . . a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding," which constitutes the record. TEX. R. APP. P. 52.7(a). "[I]t is clear that a court of appeals may not grant mandamus relief when the petition and record require the court to speculate." In re Cap Rock Elec. Coop., Inc., 35 S.W.3d 222, 226 (Tex.App.-Texarkana 2000, orig. proceeding). A court should deny a petition for writ of mandamus when the relator does not file the record required by Rule 52.7(a). See In re Salazar, No. 08-04-00087-CV, 2004 Tex. App. LEXIS 4411, at *1 (Tex.App.-El Paso May 6, 2004, orig. proceeding); cf. In re Taylor, 28 S.W.3d 240, 247 (Tex.App.-Waco 2000, orig. proceeding), overruled on other grounds, In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003) (termination of parental rights).
Relator has not filed that record. In order for Relator to demonstrate his eligibility for mandamus relief, his record would have to contain, at a minimum, any charging instrument of which he complains. Cf. IADA, 18 U.S.C. app. § 2, art. V(c) ("indictment, information, or complaint"); cf. also TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. V(c) (same). Because it does not, we should deny the petition.
II. A. 1. b. Relator fails to file an Appendix.
Relator has also failed to include an Appendix to his petition. The Rules of Appellate Procedure provide, "The petition must . . . contain . . . [an] Appendix," which "must contain . . . a certified or sworn copy of any order complained of, or any other document showing the matter complained of." TEX. R. APP. P. 52.3(j)(1)(A); see 10TH TEX. APP. (WACO) LOC. R. 17(b). A relator's Appendix must be "sufficient to enable" the court "to assess his complaints." Villarreal, 96 S.W.3d at 710. A court should deny a petition for writ of mandamus that does not include an Appendix. See id.; e.g., In re Sepeda, No. 08-04-00129-CV, 2004 Tex. App. LEXIS 7611, at *1-*2 (Tex.App.-El Paso Aug. 25, 2004, orig. proceeding); In re Bailey, 102 S.W.3d 895, 895 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding) (per curiam).
Relator has not filed that Appendix. When Relator filed his petition, it was accompanied only by three unsworn exhibits: purported (1) "IADA Documents," (2) "Motion to Dismiss Pending Misdemeanor Charge," and (3) "Program Staff Reviews." (Pet. Exs. A-C.) This Court's Clerk notified Relator that Relator "ha[d] not provided certified or sworn copies of the documents attached to the petition" (citing Tex.R.App.P. 52.7) (record). The Clerk further notified Relator, "If relator fails to correct th[is] deficienc[y] within 10 days after the date of this letter, the petition will be struck" (citing TEX. R. APP. P. 9.4(i)). Relator provided copies of "IADA paperwork" certified by the custodian of records of the institution where Relator is imprisoned, and the Clerk filed those copies as Relator's Appendix. See TEX. R. APP. P. 52.3(j)(1)(A); (Pet. App.). Relator did not provide a certified or sworn copy of his purported motion to dismiss. ( See Pet. Ex. B.) The exhibit to Relator's petition is handwritten — not a photocopy or carbon copy, but a holograph manuscript. ( Id.) It does not contain a certificate of service, and does not bear a file-mark. ( Id.) Nor did Relator provide certified or sworn copies of his purported Program Staff Reviews. ( See Pet. Ex. C.) In order for Relator to demonstrate his eligibility for mandamus relief, his Appendix would have to contain, at a minimum, certified or sworn copies of the warrant that he seeks to have dismissed and of the detainer that he contends was lodged against him. Cf. IADA, 18 U.S.C. app. § 2, art. V(c) (charging instrument "on the basis of which the detainer has been lodged"); cf. also TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. V(c) (same). Because it does not, we should deny the petition.
II. A. 1. c. Relator fails to file affidavits.
The Rules of Appellate Procedure require of petitions for writs of mandamus that "[a]ll factual statements in the petition must be verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated." Tex.R.App.P. 52.3. The failure to do so is fatal. See Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Crim.App. 1982) (orig. proceeding); Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex. 1988) (orig. proceeding) (interpreting TEX. R. APP. P. 121, 49 TEX. B.J. 556, 586-87 (Tex.Crim.App. Tex. 1986) (repealed 1997) (current version at TEX. R. APP. P. 52.3)); In re Aguirre, No. 14-04-00106-CV, 2004 Tex. App. LEXIS 1577, at *1 (Tex.App.-Houston [14th Dist.] Feb. 19, 2004, orig. proceeding) (per curiam); In re Kuhler, 60 S.W.3d 384, 385 (Tex.App.-Amarillo 2001, orig. proceeding); cf. Taylor, 28 S.W.3d at 245.
Relator has not filed such affidavits. Nor is the petition verified or supported by unsworn declaration. Cf. 28 U.S.C. § 1746 (2000). In order for Relator to demonstrate his eligibility for relief, his numerous statements of fact not otherwise shown in the record would have to be verified by affidavit. Because Relator has not done so, we should deny the petition.
II. A. 2. Relator fails to show that he presented his complaint to Respondent.
Next, the record does not show that Relator presented his request to Respondent, or that Respondent refused Relator's request.
"A party's right to mandamus relief generally requires a predicate request for some action and a refusal of that request." In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding); see Bd. of Pardons Paroles ex rel. Keene v. Court of Appeals, 910 S.W.2d 481, 484 n. 4 (Tex.Crim.App. 1995) (orig. proceeding); Parker v. State, 397 S.W.2d 853, 856 (Tex.Crim.App. 1965) (op. on reh'g); Ex parte Roper, 61 Tex. Crim. 68, 77-78, 134 S.W. 334, 339 (1910) (op. on orig. submission); see also Chu, 134 S.W.3d at 467; Davidson, 2004 Tex. App. LEXIS 1672, at *2; In re Torres, 130 S.W.3d 409, 412-13 (Tex.App.-Corpus Christi 2004, orig. proceeding) (underlying criminal case). "As a rule, mandamus is not available to compel an action which has not first been demanded and refused." Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding). In order for mandamus to lie, the respondent "must have refused to act; that is, he must have explicitly denied motions intended to compel" the action that the relator seeks to compel. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding). Even "[s]howing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling." Davidson at *2-*3.
The only exception to this requirement is "when the request would have been futile and refusal little more than a formality." Perritt, 992 S.W.2d at 446 (quoting Terrazas, 829 S.W.2d at 723). The record gives no reason to believe that, that exception would apply in the instant cause.
Here, Relator does not even show that he filed a motion with the trial court clerk. Relator certainly does not show that he presented a motion to Respondent, or that Respondent denied a motion. Accordingly, Relator does not show that he is eligible for a writ of mandamus.
II. B. Relator fails to show that he is eligible for relief as a matter of substantive mandamus law.
"To obtain relief through mandamus, a relator must meet both prongs of the traditional two-step test for issuance of mandamus." State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 48 (Tex.Crim.App. 1987) (orig. proceeding); accord State ex rel. Hill v. Court of Appeals, 34 S.W.3d 924, 928 n. 6 (Tex.Crim.App. 2001) (orig. proceeding). That is, a court may grant a writ of mandamus only if the relator "can demonstrate that the act sought to be compelled is purely `ministerial' and that" the relator "has no adequate legal remedy." De Leon, 127 S.W.3d at 5 (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003) (orig. proceeding)). "The burden of establishing an abuse of discretion and an inadequate appellate remedy is on" the relator, "and this burden is a heavy one." In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam); see Banales v. Court of Appeals, 93 S.W.3d 33, 35 (Tex.Crim.App. 2002) (orig. proceeding); State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873, 880 (Tex.Crim.App. 1993) (orig. proceeding); see also In re Am. Home Prods. Corp., 980 S.W.2d 506, 511 (Tex.App.-Waco 1998, orig. proceeding [mand denied]) ("onerous burden"). Relator establishes neither.
II. B. 1. Relator fails to demonstrate that he has a clear right to relief.
The record does not show that Relator has a right to relief. In order to be eligible for a writ of mandamus, "the relator must have a `clear right to the relief sought,' meaning that the merits of the relief sought are `beyond dispute.'" Winters v. Presiding Judge of Crim. Dist. Court No. 3, 118 S.W.3d 773, 775 (Tex.Crim.App. 2003) (orig. proceeding) (quoting In re Rodriguez, 77 S.W.3d 459, 461 (Tex.App.-Corpus Christi 2002, orig. proceeding)). "The requirement of a clear legal right necessitates that the law plainly describes the duty to be performed such that there is no room for the exercise of discretion." Id. That is, "the court's duty" must be "indisputably articulated." Id.
Relator seeks relief under the federal Interstate Agreement on Detainers Act ("IADA"). See IADA, 18 U.S.C. app.; see also TEX. CODE CRIM. PROC. ANN. Art. 51.14. The record does not show that Relator has a right to relief under the IADA.
The Interstate Agreement on Detainers ("IAD") is a compact to which the United States of America and Texas are party states. IADA, 18 U.S.C. app. § 2; Bozeman, 533 U.S. at 149; see Tex. Code Crim. Proc. Ann. Art. 51.14; Jones v. State, 803 S.W.2d 712, 718 n. 4 (Tex.Crim.App. 1991); State v. Miles, 101 S.W.3d 180, 184 n. 2 (Tex.App.-Dallas 2003, no pet.). "As `a congressionally sanctioned interstate compact' within the Compact Clause of the United States Constitution, Art. I, § 10, cl. 3, the [IAD] is a federal law subject to federal construction." Bozeman at 149 (quoting Hill, 528 U.S. at 111) (alteration in Bozeman); accord Giles v. State, 908 S.W.2d 303, 304 (Tex.App.-El Paso 1995, pet. ref'd); see West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951). The IAD is thus "subject to federal rather than state construction." Cuyler v. Adams, 449 U.S. 433, 438 (1981); Johnson v. State, 900 S.W.2d 475, 479 (Tex.App.-Beaumont 1995), aff'd, 930 S.W.2d 589 (Tex.Crim.App. 1996) (per curiam); accord Odhinn v. State, 2003 WY 169, ¶ 15, 82 P.3d 715, 720 (Wyo. 2003) ("United States Supreme Court interpretations of the IAD are . . . binding on state courts."); cf. Ex parte Sanchez, 918 S.W.2d 526, 527 (Tex.Crim.App. 1996) ("The IAD is a state law as well as a law of the United States.").
A detainer is "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be advised when the prisoner's release is imminent." Fex v. Michigan, 507 U.S. 43, 44 (1993); accord Miles, 101 S.W.3d at 183 (quoting Fex at 44); see United States v. Mauro, 436 U.S. 340, 359 (1978) ("a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction") (quoting H.R. REP. NO. 91-1018, at 2 (1970) S. REP. NO. 91-1356, at 2 (1970) (legislative history of IADA)); see also Bozeman, 533 U.S. at 148 ("a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime").
The purposes of the IADA are:
(1) "to encourage the expeditious and orderly disposition of . . . charges" that are "outstanding against a prisoner" and "determination of the proper status of any and all detainers based on untried indictments, informations, or complaints" against "persons already incarcerated in other jurisdictions"; and
(2) "to provide . . . cooperative procedures" among "sending states" in which a prisoner is incarcerated and "receiving states" in which the prisoner is to be tried.
See IADA, 18 U.S.C. app. § 2, arts. I, II(b)-(c); see also TEX. CODE CRIM. PROC. ANN. Art. 51.14, arts. I, II(b). The IAD
basically (1) gives a prisoner the right to demand a trial within 180 days; and (2) gives a State the right to obtain a prisoner for purposes of trial, in which case the State (a) must try the prisoner within 120 days of his arrival, and (b) must not return the prisoner to his "original place of imprisonment" prior to that trial.
Bozeman, 533 U.S. at 151 [(quoting IADA, 18 U.S.C. app. § 2, art. IV(e))].
When a prisoner seeks disposition of charges under the IAD, the burden of compliance is on the prisoner. Fex, 507 U.S. at 52; accord McNulty v. State, No. 05-02-00635-CR, 2003 Tex. App. LEXIS 1802, at *6-*8 (Tex.App.-Dallas Feb. 28, 2003, no pet.) (not designated for publication); Lindley v. State, 33 S.W.3d 926, 930 (Tex.App.-Amarillo 2000, pet. ref'd); Morganfield v. State, 919 S.W.2d 731, 734 (Tex.App.-San Antonio 1996, no pet.) (quoting United States v. Henson, 945 F.2d 430, 434 (1st Cir. 1991)); Lara v. State, 909 S.W.2d 615, 617-18 (Tex.App.-Fort Worth 1995, pet. ref'd); Bryant v. State, 819 S.W.2d 927, 930-31 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd); Crosland v. State, 857 P.2d 943, 945-46 (Utah 1993) (orig. proceeding); see Burton v. State, 805 S.W.2d 564, 575 (Tex.App.-Dallas 1991, pet. ref'd).
Relator argues under Article V of the IADA. The IADA provides: "If the appropriate authority shall refuse or fail to accept temporary custody of" a prisoner offered under the IADA,
or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
IADA, 18 U.S.C. app. § 2, art. V(c); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. V(c).
Although, in quoting IADA Article V, Relator refers to Article IV, ( see Pet. at 3), the latter does not apply to him. Article IV governs requests by receiving states for temporary custody of prisoners. See IADA, 18 U.S.C. app. § 2, art. IV; see also TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. IV; Sephus, 32 S.W.3d at 373.
The IADA provides in Article IV:
The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated. . . .
IADA, 18 U.S.C. app. § 2, art. IV(a); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. IV(a). Article IV generally provides that "trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving state." IADA, 18 U.S.C. app. § 2, art. IV(c); see Tex. Code Crim. Proc. Ann. Art. 51.14, art. IV(c). Article V provides, "At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending State." IADA, 18 U.S.C. app. § 2, art. V(e); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. V(e). Under the IADA, then, "If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." IADA, 18 U.S.C. app. § 2, art. IV(e); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. IV(e).
IADA Article III governs Relator's case. Article III provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused 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 to be made of the indictment, information, or complaint. . . .
IADA, 18 U.S.C. app. § 2, art. III(a); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. III(a).
The record before us shows that Relator is imprisoned in a correctional institution of the Federal Bureau of Prisons. ( See Pet. App.) That record, however, does not show that Relator meets any other requirement for relief under the IADA. Accordingly, Relator does not have a right to relief under the IAD.
II. B. 1. a. Relator fails to show that a detainer within the meaning of the IADA is lodged against him.
The IADA permits a prisoner to request final disposition of an "indictment, information, or complaint" pending against him or her when "there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner." IADA, 18 U.S.C. app. § 2, art. III(a); see Tex. Code Crim. Proc. Ann. Art. 51.14, art. III(a). Relator fails to show that any detainer, much less a detainer within the meaning of the IAD, has been lodged against him. Accordingly, Relator does not have a right to relief under the IADA.
II. B. 1. a.i. Relator fails to show that any detainer is lodged against him.
The IADA permits a prisoner to request disposition of charges pending against him or her in another state only when "a detainer has been lodged against the prisoner." IADA, 18 U.S.C. app. § 2, art. III(a); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. III(a). Relator does not show that any detainer has been lodged against him.
"The IAD is specifically limited to charges on the basis of which detainers have been filed." People v. Campbell, 742 P.2d 302, 306 (Colo. 1987). Where a state receiving a prisoner "never filed a detainer against" the prisoner, the IAD "never became applicable," and the receiving state "was never bound by its provisions." Mauro, 436 U.S. at 361; accord United States v. Leon, 94 Fed. Appx. 808, 809 (10th Cir. 2004); see Boettcher v. Doyle, No. 03-4001, 2004 U.S. App. LEXIS 15336, at *3-*4 (7th Cir. July 20, 2004) (unclear whether receiving state lodged detainer against appellant). "The provisions of Article III apply only when a `detainer' has first been `lodged against the prisoner' with the custodial jurisdiction." Miles, 101 S.W.3d at 183 (quoting TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. III(a)). That is, "the provisions of the [IADA] are triggered only when a `detainer' is filed with the custodial (sending) state by another (receiving) state having untried charges against the prisoner." Johnson, 900 S.W.2d at 479 (emphasis in orig.) (quoting Mauro at 343).
Thus, prosecutors know that they should not request that a detainer be lodged until they are ready to try their case: "In part because of the quick time limits involved and consequences of violating them, it is critical that a formal detainer never be lodged against an inmate incarcerated in another state unless potential effects of the IAD's requirements have been evaluated." STEVE CHALENDER, TEX. DIST. COUNTY ATT'YS ASS'N, EXTRADITION 54 (Diane Burch Beckham ed., 2004).
"Texas case law holds that a detainer is lodged when the `detainer' is `filed' with the custodial institution." Miles, 101 S.W.3d at 183-84 (citing Ex parte Bynum, 772 S.W.2d 113, 115 (Tex.Crim.App. 1989) (per curiam)). Federal Bureau of Prisons procedures, however, require: "For a state or local authority to lodge a detainer against an inmate in Bureau custody, . . . the requesting authority must provide a copy of the warrant/abstract along with a cover letter requesting placement of a detainer in its favor." U.S. DEP'T OF JUSTICE, FED. BUREAU OF PRISONS, INMATE SYSTEMS MANAGEMENT MANUAL § 703(a) (2002), http://www.bop.gov/progstat/5800_013.pdf (last visited Oct. 1, 2004).
The record before us either does not demonstrate, or affirmatively refutes, that Texas lodged a detainer against Relator. The warden of the institution where Relator was imprisoned completed a Certificate of Inmate Status, which was attached to Relator's notice of his place of imprisonment which he directed to Real Party in Interest. (Pet. App. at [5], [6]); see IADA, 18 U.S.C. app. § 2, art. III(a); see also TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. III(a). The certificate states:
Relator's petition states, "On July 15, 2003 the Johnson County Sheriffs Office in Cleburne, Texas lodged a detainer against petitioner at Oxford FCI charging — DWI Warrant # M200300270" [sic]. (Pet. at 2.) For the reasons stated above, we should not consider the unverified factual statements in Relator's petition. See supra Part II.A.1.c.
Moreover, were I to consider the purported program staff reviews attached as an exhibit to the petition, those reviews would further tend not to support Relator's argument. ( Cf. Pet. Ex. C.) That exhibit purports to contain reviews of Relator's participation in a residential drug abuse treatment program by drug treatment specialists at the institution where he is imprisoned. See 18 U.S.C. § 3621(e)(5)(A) (2000) (defining "residential substance abuse treatment"). In the purported review dated April 16, 2004, wherever the typed word "detainer" appears, the word is crossed out and "WARRANT" is interlineated in manuscript, apparently in Relator's handwriting. ( See Pet. Ex. C at [1]).
Detainers currently on file against this inmate from your state are as follows:
-None-
(Pet. App. at [6].) The record before us thus shows that Texas has not lodged a detainer against Relator. Accordingly, Relator does not have a right to relief under the IADA.
II. B. 1. a. ii. Relator fails to show that a detainer based on a charging instrument pending against him is lodged against him.
The IADA provides that a prisoner may request disposition of an "untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner." IADA, 18 U.S.C. app. § 2, art. III(a); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. III(a). Relator does not show that any such detainer has been lodged against him.
"Detainer," within the meaning of the IADA, "refers to `detainers based on untried indictments, informations, or complaints.'" United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir. 1985) (quoting IADA, 18 U.S.C. app. § 2, art. I). "The most natural interpretation of the words `indictment,' `information,' and `complaint' is that they refer to documents charging an individual with having committed a criminal offense." Carchman v. Nash, 473 U.S. 716, 724 (1985) (citing FED. R. CRIM. P. 7 (indictment, information), 3 (complaint)) (interpreting IADA, 18 U.S.C. app. § 2, art. III); see TEX. CODE CRIM. PROC. ANN. Arts. 21.01 (Vernon 1989) (indictment), 21.20 (Vernon 1989) (information), 2.05 (Vernon 1977) (complaint). "[T]he provisions of the [IADA] are triggered only when a `detainer' is filed with the custodial (sending) state by another (receiving) state having untried charges against the prisoner." Johnson, 900 S.W.2d at 479 (emphasis in orig.).
A detainer based on a warrant, however, does not fall within the IADA. Carchman, 473 U.S. at 724-26 (probation violation warrant); Bottoms, 755 F.2d at 1350 (arrest warrant); Parker v. United States, 590 A.2d 504, 507-508 (D.C. 1991) (warrant); State v. Carlton, 583 S.E.2d 1, 2-3 (Ga. 2003) (arrest warrant); Blakely v. Dist. Court, 755 P.2d 1380, 1384 (Mont. 1988) (orig. proceeding) (same); see also Mauro, 436 U.S. at 360-61 (writ of habeas corpus ad prosequendum); McNulty, 2003 Tex. App. LEXIS 1802, at *9 (same).
Relator's unverified petition states, "On July 15, 2003 the Johnson County Sheriffs Office in Cleburne, Texas lodged a detainer against petitioner at Oxford FCI charging — DWI Warrant # M200300270" [sic]. (Pet. at 2.) Throughout his petition, Relator refers only to a "warrant." See TEX. CODE CRIM. PROC. ANN. Art. 15.02 (Vernon 1977) (stating requisites of warrant). Relator nowhere refers to any charging instrument pending against him upon which any detainer could have been based. ( Cf. Pet. App.) Accordingly, Relator does not show that he has a right to relief under the IADA.
II. B. 1. b. Relator fails to show that he caused notice and request to be delivered to Respondent.
IADA Article III generally provides that a prisoner "shall be brought to trial within one hundred and eighty days after he shall have caused 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 final disposition to be made of the indictment, information, or complaint" pending against the prisoner in another state that is a party to the IAD. IADA, 18 U.S.C. app. § 2, art. III(a); see TEX. CODE CRIM. PROC. ANN. Art. 51.14, art. III(a). Relator does not show that he caused such request and notice to be delivered to Respondent.
As the United States Supreme Court has held in Fex v. Maryland, "the 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex, 507 U.S. at 52; accord Burton, 805 S.W.2d at 575; Bryant, 819 S.W.2d at 930-31. " Fex instructs us that the IADA means what it says. And when it says that the prisoner must have his demand `delivered to the . . . appropriate court,' that is what it means." United States v. Rodriguez-Aguilera, 65 Fed. Appx. 118, 119-20 (9th Cir. 2003) (quoting United States v. Collins, 90 F.3d 1420, 1426 (9th Cir. 1996)) (ellipsis in Rodriguez-Aguilera); accord State v. Somerlot, 544 S.E.2d 52, 57-59 (W.Va. 2000) (collecting cases requiring strict compliance with IADA). "A vital aim of the requirement of strict compliance is to assure that the appropriate prosecuting authorities promptly are placed on notice when Article III is invoked by an inmate." Henson, 945 F.2d at 434.
For purposes of notice and request under the IADA, the "appropriate court" is the court "where the charge is pending." Bryant, 819 S.W.2d at 929; Bell v. State, 768 S.W.2d 790, 801 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd); accord Fex, 507 U.S. at 52 (court "that lodged the detainer against" the prisoner); see IADA, 18 U.S.C. app. § 4 (court "in which indictments, informations, or complaints, for which disposition is sought, are pending").
Relator failed to cause his notice and request to be delivered to Respondent. Relator's notice titled Place of Imprisonment was directed as follows:
--------------------------------------------------------- To: Prosecuting Officer Jurisdiction Bill J. Moore Johnson County, TX --------------------------------------------------------- Court Jurisdiction County Court Johnson County, TX ---------------------------------------------------------
And to all other prosecuting officers and courts of jurisdiction listed below from which indictments, informations, or complaints are pending. . . .
(Pet. App. at [5]); see IADA, 18 U.S.C. app. § 2, art. III(a); see also Tex. Code Crim. Proc. Ann. Art. 51.14, art. III(a). No other prosecuting officer, court, or jurisdiction is listed. ( Cf. Pet. App. at [5].) Certified mail return receipts show something, although the record does not show what, mailed to "Clerk of Court, Johnson County" and received by the same person who received the mailings to Real Party in Interest. ( Id. at [9]-[10].) The record does not show that Relator caused a request for final disposition or notice of his place of imprisonment to be delivered to Respondent, and thus does not show that Relator invoked the IADA. Accordingly, Relator has no right to relief under the IADA.
Besides its constitutional County Court, Johnson County has two statutory county courts, namely "County Court at Law No. 1" and Respondent's "County Court at Law No. 2"; and two district courts. See TEX. CONST. art. V, § 15; TEX. GOV'T CODE ANN. § 25.1281 (Vernon 2004); id. §§ 24.119, 24.557 (Vernon 2004).
II. B. 1. c. Relator is not entitled to relief under the IADA because he did not make a timely request for trial under the IADA.
A prisoner is not entitled to relief where he or she fails to make a timely request for trial in the trial court within the period established by the IADA, whether 180 days under Article III or 120 days under Article IV. See Reed v. Farley, 512 U.S. 339, 348-49 (1994) (habeas corpus); see Sanchez, 918 S.W.2d at 527 (same).
The record before us does not show that Relator made a request for trial, much less a timely request, under the IADA. Accordingly, Relator does not show that he has a right to relief under the IADA.
Even were I to take Relator's unverified factual statements as true, as we should not, they would defeat his claim. Relator contends that his "IADA Request" was delivered to Real Party in Interest on July 21, 2003. (Pet. at 3.) Relator contends that he filed a motion to dismiss with Respondent on March 10, 2004. ( Id.) Assuming that an indictment or information was pending in Respondent's court, in order for Relator to invoke the 180-day requirement of IADA Article III, it was necessary that Relator — within 180 days of delivery of Relator's request for disposition to Respondent — request that Respondent set Relator's case for trial within the 180-day period. By Relator's petition, he failed to do so by some 53 days. ( Cf. id.) Accordingly, Relator would not have a right to relief under the IADA.
II. B. 2. Relator fails to demonstrate that he has no legal remedy.
The other great requirement for mandamus relief is that a court may issue a writ of mandamus only if the relator demonstrates that he or she has "no adequate legal remedy." De Leon, 127 S.W.3d at 5; accord Winters, 118 S.W.3d at 775. "That a party must have `no other adequate remedy by law' is a `fundamental tenet' of mandamus practice." In re State Bar, 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding) (quoting Walker, 827 S.W.2d at 839); accord In re D.A.S., 973 S.W.2d 296, 300 (Tex. 1998) (orig. proceeding) (juvenile delinquency). A relator "cannot satisfy the inadequate legal remedy requirement merely by showing that he will be greatly inconvenienced by getting the . . . question decided through the normal appellate process." De Leon at 6. "It is a clear abuse of discretion for a court of appeals to grant mandamus relief to an aggrieved party with an adequate remedy at law." Woodard v. Eighth Court of Appeals, 991 S.W.2d 795, 796 (Tex.Crim.App. 1998) (orig. proceeding).
Here, Relator has an adequate legal remedy short of a writ of mandamus.
II. B. 2. a. Relator may file a motion to set aside any information.
The Texas Court of Criminal Appeals has held that a relator seeking pretrial dismissal of a charging instrument "has an adequate remedy at law and, therefore, has no need for the drastic remedy of mandamus." Smith, 962 S.W.2d at 592 (citing United States v. MacDonald, 435 U.S. 850, 860-61 (1978)) (VIth Amend. speedy trial); accord Thomas v. Stevenson, 561 S.W.2d 845, 847 n. 1 (Tex.Crim.App. 1978) (orig. proceeding); Pope v. Ferguson, 445 S.W.2d 950, 955-56 (Tex. 1969) (orig. proceeding). That remedy is that a relator "could file a motion to set aside the" charging instrument "in the trial court, pursuant to Article 27.03 of the Texas Code of Criminal Procedure, and if the trial court erroneously denied the motion, . . . could appeal from any conviction that resulted from the continued prosecution." Smith, 962 S.W.2d at 592 (citing Pope at 955-56); see TEX. CODE CRIM. PROC. ANN. Art. 27.03 (Vernon 1989); but see Engle v. Coker, 820 S.W.2d 247, 250-51 (Tex.App.-Beaumont 1991, orig. proceeding) (distinguishing Tex. IADA from former Speedy Trial Act). "The remedy for violations of" the IAD "is a bar on prosecution." Smith v. State, 70 S.W.3d 848, 853 (Tex.Crim.App. 2002). Thus, Relator has an adequate remedy by appeal from any denial of a motion under the IADA. Accordingly, we should deny his petition.
II. B. 2. b. On the majority's analysis, Relator has adequate remedies at law.
Two other remedies are conditioned on the majority's incorrect analysis of the case. The majority states that "[t]he State" "responded" to Relator's petition with copies of a motion and order dismissing the trial court case, No. M200300270, styled The State of Texas v. Charles Larry Ryan. The response-letter states that the dismissal is "in accordance with Title 18, United States Code, Appendix 2, Interstate Agreement on Detainers." The accompanying order is, however, "without prejudice."
(Slip op. at [1].) The majority thus errs in considering the State's correspondence as a response to the petition, and, further, in considering material not before Respondent at the time that Relator contends Respondent abused his discretion.
On July 14, 2004, the Court requested a response to the petition. See Tex.R.App.P. 52.4. On July 23, 2004, the Clerk received a letter from Real Party in Interest. (Letter from Asst. Johnson County Att'y to Clerk of 7/20/2004.) The letter states: "Enclosed is a copy of the Motion to Dismiss and Judge William Anderson's Order of Dismissal in Johnson County Cause No. M200300270, styled: The State of Texas v. Charles Larry Ryan. This charge was dismissed in accordance with Title 18 United States Code, Appendix 2, Interstate Agreement on Detainers." ( Id.) Attached to the letter is what purports to be a copy of a boiler-plate motion to dismiss and order on the motion. ( Id. attachment.) The motion and order purport to be filed in Cause No. M200300270, styled The State of Texas v. Charles Larry Ryan, in the County Court at Law Number 2 of Johnson County, Texas. ( Id.) The purported Motion to Dismiss states, in relevant part:
NOW COMES the State of Texas by and through her County Attorney, and respectfully requests the Court to dismiss the above entitled and numbered criminal action in which the defendant is charged with the offense of DRIVING WHILE INTOXICATED, for the reason:
. . .
Other; TITLE 18 UNITED STATES CODE, APPENDIX 2, INTER-STATE AGREEMENT ON DETAINERS
WHEREFORE, the County Attorney prays that the above entitled and numbered criminal action be dismissed without prejudice.
( Id. (typewritten insertions underlined).) The purported boiler-plate Order at the bottom of the motion states:
The foregoing Motion to Dismiss having been presented to me on this the 20 [sic] day of July, 2004, and the same having been considered, it is therefore ORDERED, ADJUDGED AND DECREED that said above entitled and numbered criminal action be and the same is hereby dismissed without prejudice.
( Id. (handwritten insertions italicized).) The Order purports to be signed by Respondent. ( Id.)
The Clerk has not filed this correspondence, but has either treated it, as it is, as mere correspondence; or has treated it as defective. See 10TH TEX. APP. (WACO) LOC. R. 5. The majority treats the State's correspondence as a "response-letter," (slip op. at [1]), a term unknown to the Rules of Appellate Procedure, cf. TEX. R. APP. P. For the same reasons for which we should disregard Relator's unverified statements and uncertified and unsworn exhibits, we should disregard Real Party in Interest's. See supra Part II.A.1.b.-c.; TEX. R. APP. P. 52.4 (response to conform to requirements for petition); id. 52.3(j)(1)(A), 52.7(a) (Appendix and record requirements for petition); Schroeder v. Valdez, 941 S.W.2d 312, 314 (Tex.App.-Corpus Christi 1997, orig. proceeding).
The majority errs in considering matters not before Respondent when he took the action by which Relator contends that Respondent abused his discretion. In determining whether a writ of mandamus should issue, a court "must focus on the record that was before the [trial] court" when the trial court made its decision. In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (orig. proceeding); accord In re Cont'l Ins. Co., 994 S.W.2d 423, 423 (Tex.App.-Waco, orig. proceeding), mand conditionally granted on other grounds sub nom. In re Union Pac. Res. Co., 22 S.W.3d 338 (Tex. 1999) (orig. proceeding) (per curiam); In re Taylor, 113 S.W.3d 385, 392 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding) (exhibits). In Relator's petition, dated June 15, 2004, he contends that Respondent did not rule on Relator's motion to dismiss, which Relator contends he filed on March 10, 2004. (Pet. at 3, 4.) The majority thus finds an abuse of discretion in a purported order that, under the majority's analysis, Respondent signed on July 20, 2004, after Relator filed his petition. ( See slip op.)
Considering the State's correspondence as a response, however, and crediting the purported motion and order, Relator still would have adequate remedies short of a writ of mandamus, and thus would not be eligible for a writ.
II. B. 2. b.i. Relator may move for judgment nunc pro tunc.
First, Relator may have an adequate remedy by an order nunc pro tunc. See generally Tex.R.App.P. 23. "[T]he proper mode of correction" of "an inaccurate criminal judgment" is "a nunc pro tunc motion and order." Ex parte Pena, 71 S.W.3d 336, 337 n. 5 (Tex.Crim.App. 2002); accord Ex parte Madding, 70 S.W.3d 131, 135 n. 8 (Tex.Crim.App. 2002); State v. Bates, 889 S.W.2d 309, 309 (Tex.Crim.App. 1994); see Ex parte Evans, 964 S.W.2d 643, 645 n. 2 (Tex.Crim.App. 1998) (jail time credit) ("preferred practice"); State v. Ross, 953 S.W.2d 748, 751-52 (Tex.Crim.App. 1997) (deadly weapon finding). "A judgment nunc pro tunc, which literally means `now for then,' . . . may be used only to correct clerical errors in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time." Bates at 309; accord Pena at 337 n. 5.
If Respondent's signing an order of dismissal "without prejudice" when presented with a motion to dismiss under the IADA was a clerical error, then Relator may seek correction of the order by a motion for judgment nunc pro tunc.
II. B. 2. b. ii. Relator may give notice of appeal.
Moreover, Relator would have a remedy by direct appeal of the order. "[M]andamus is not a substitute for appeal. . . ." Hill, 34 S.W.3d at 928 n. 5 (citing State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App. 1994) (orig. proceeding)).
A criminal defendant has a general right of appeal. See TEX. CODE CRIM. PROC. ANN. Art. 44.02 (Vernon 1979). An order of dismissal is a final, appealable order. State v. Moreno, 807 S.W.2d 327, 334 (Tex.Crim.App. 1991) (State's appeal); Lozano v. State, 978 S.W.2d 645, 648 (Tex.App.-Eastland 1998, no pet.) (criminal bond forfeiture). If the order is erroneous, then direct appeal lies from the order.
Accordingly, the majority errs in granting the writ of mandamus.
CONCLUSION
For these reasons, we should strike or dismiss Relator's Petition for Expeditious Mandamus, or, in the alternative, deny it. Because the majority conditionally grants it, I respectfully dissent.