Mitchell, Birshal Dion
WR-56,588-03
Tex. App.Apr 16, 2015Background
- Birshal Mitchell, TDCJ-CID #630503, seeks mandamus relief in the Texas Court of Criminal Appeals.
- Relator was convicted of aggravated robbery in 1991; he received ten years of deferred adjudication probation and was later revoked to a twenty-year sentence.
- Relator served partial time, was paroled in 2003, and by 2011 his street-time calculations were subject to retroactive law changes under Government Code sections 508.149(a) and 508.283 enacted in 1997.
- Relator contends the law in effect at the time of the offense governs his sentence and that his street-time was improperly denied by TDCJ and the parole authorities.
- In March 2015 Relator filed a Motion for Judgment Nunc Pro Tunc in the trial court to have the sentence corrected; on April 2, 2015 the motion was denied, allegedly by the court clerk rather than the presiding judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is appropriate to compel action on the nunc pro tunc motion | Mitchell | Respondent | Yes; mandamus may issue when no adequate remedy by appeal exists and the act sought is ministerial. |
| Whether the clerk's denial constitutes a ministerial act requiring mandamus relief | Mitchell | Respondent | Yes; the clerk's involvement in denying the motion without the judge's signed order warrants mandamus relief. |
Key Cases Cited
- In re Mata, 212 S.W.3d 597 (Tex. App. Austin 2006) (mandamus relief appropriate where no adequate remedy by appeal)
- In re Hewlett-Packard, 212 S.W.3d 356 (Tex. App. Austin 2006) (mandamus relief to correct court action)
- Dickens v. Second Ct. of App., 727 S.W.2d 542 (Tex.) (discretionary nature of mandamus)
- State ex rel. Hill v. Ct. of Appeals for the 5th Dist., 34 S.W.3d 924 (Tex. 2000) (two-prong standard for mandamus: no adequate remedy and ministerial act)
- Stotts v. Wisser, 894 S.W.2d 366 (Tex. App. 1994) (review of discretionary appellate decisions)
- Runtion v. Harmon, 827 S.W.2d 945 (Tex. App. 1992) (mandamus standards and ministerial act concepts)
- State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex. App. 1978) (mandamus authority and writ scope)