Thе STATE of Texas, ex rel. Travis B. BRYAN, III, District Attorney of Brazos County, Texas, Relator v. W.T. MCDONALD, Jr., Presiding Judge, 85th Judicial District Court of Brazos County, Texas, (et al.), Respondent.
No. 69048.
Court of Criminal Appeals of Texas, En Banc.
Nov. 3, 1982.
Rehearing Denied Dec. 22, 1982.
The judgment is reversed and the cause is remanded.
Travis B. Bryan, Jr., pro se.
W.T. McDonald, Jr., pro se.
Robert Huttash, State‘s Atty., and Alfred Walker, Asst. State‘s Atty., State‘s Atty., Austin, for the State.
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 relator argues that the respondent acted without jurisdiction and thus the order granting Dockery shock probation is vоid. We agree.
“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 оwn 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 conсerning ‘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 рossession 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 Dockery‘s application for shock probation. However, once the 180th day passed, all disсretion 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
Finally, the amicus curiae asks us to reconsider our holding in Houlihan v. State, supra, and find that the 180 day period under
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 rеspondent will act accordingly.
It is so ordered.
ROBERTS, J., not participating.
CLINTON, Judge, concurring.
The opinion of this Court in Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979) pointedly stated:
“So, here, the forum to petition for redress for relief from untoward consequences of clear meaning of unambiguous
statutory language is the Legislature that enacted it.”
Houlihan v. State, supra, at 220. That opinion was delivered March 28, 1979—while the Legislature was in session.
While we do not know that the Houlihan opinion received much attention, at least one application of its holdings generated public outcry that prompted demands for legislative action. Responding to expressed concerns the Legislature extensively revised
Thus, given ample opportunity to grant “relief from untoward consequences of clear meaning of unambiguous statutory language,” the Legislature demurred. Now it would be most unbecoming for this Court to do that which the Legislative Department has declined, for we are constitutionally admonished against “exercis[ing] any power properly attached to either” of the other departments of Government.
Accordingly, I concur in opinion and judgment of the Court.
TEAGUE, Judge, dissenting.
This is an original application for a writ of mandamus brought by the duly elected District Attorney of Brazos County, the Hon. Travis B. Bryan, requesting this Court to order the Hon. W.T. McDonald, Jr., the regular presiding judge of the 85th Judicial District Court of Brazos County, to vacate an order he entered which suspended the further execution of the penitentiary sentence of one Burtis Dockery. It is claimed by Bryan that Judge McDonald‘s order, that accorded Dockery “shock probation“, is void becausе, at the time the order was rendered, the trial court had lost jurisdiction over the subject matter.
In granting Bryan the application, I find that the majority of this Court has blindly followed language found in Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981); Adams v. State, 610 S.W.2d 780 (Tex.Cr.App.1981); and Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979). It has also, sad to say, literally read
The record in this cause reveals that Dockery was incarcerated in the Texas Department of Corrections on March 16, 1982, after Judge McDonald assessed Dockery a four year penitentiary sentence for committing the felony offense of robbery. On June 4, 1982, eighty days after Dockery‘s sentence “actually began,” see Adams v. State, supra, Dockery‘s attorney, the Hon. William W. Vance, filed in Judge McDonald‘s court an application for “shock probation“. Dockery himself filed a similar pro se motion one week later. Other than the filing of thе instruments, the record does not indicate that any affirmative action was taken on either of the instruments until September 8, 1982. The record does indicate that on June 23, 1982, Vance wrote Judge McDonald, reminding the judge of the need to obtain Dockery‘s penitentiary record and to conduct a hearing on the application for shock probation, which request was authorized by the provisions of
On September 17, 1982, after conducting the hearing, see
Thereafter, Bryan, the District Attorney, filed with this Court his application for writ of mandamus.
I believe that this Court should reconsider its past decisions on this point, and should consider how the Federal Courts have interpreted
In Houlihan, supra, this Court, speaking through Judge Clinton, applied a “jurisdictional test” in interpreting the shock probation law, and the time set out in the State statute. He distinguished Federal decisions interpreting
To date, the Federal Circuit Courts of Appeals have construed
I do not believe in this instance a literal reading and interpretatiоn of the Texas’ shock probation statute is either proper or necessary. The Fourth Circuit Court of Appeals, in United States v. Stollings, 516 F.2d 1287 (4th Cir.1975), made the following observation regarding a literal reading and interpretation of
We cannot assume that [a literal] reading [of the Rule] was intended when the consequences would be so devastatingly and arbitrarily fortuitous. If delay flows from the incapacity, the absence, or the preoccupation of the judge, its consequences should not be visited upon the prisonеr.
The United States Supreme Court, see United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), and all of the Federal Circuit Courts of Appeals have held that
There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words.
In United States v. Mendoza, 565 F.2d 1285 (5th Cir.1978), aff‘d 581 F.2d 89 (5th Cir.1978), the Fifth Circuit Court of Appeals refused to “slavishly” follow the literal language of such a statute as is before us. The Court stated the following:
We need not, indeed must not, slavishly follow the literal language of the Rule when that language leads us through the looking glass to an unjust and unreasonable result . . . The lower court‘s failure to rule on the motion in time was wholly beyond the convicted defendant‘s control.
“The provisions of this Code shall be liberally construed so as to attain the objects intended by the Legislature: The prevention, suppression, and punishment of crime.”
It appears clear that the Legislature enacted the law of shock probation to improve our system of criminal jurisprudence; in particular, to enable a trial judge to punish a convicted felon by giving him a “taste” of the penitentiary, yet allow the remainder of the felon‘s sentence to be probated, “if in the opinion of the judge the defendant would not benefit from further incarceration in the penitentiary.”
In respect to the inmate, Dockery, Judge McDonald has made the reasoned determination that Dockery will “not benefit from further incarceration“, and should therefore be released on supervised probation. The majority‘s literal reading of the statute, however, requires that Dockery be reincarcerated in a prison system that is already bulging at the seams and what may be, outside of the Communist countries, the largest penal system in the world, as well as what may be the most expensive penal system of the States of the Union. Recently, the citizens of this State have been apprised that what was formerly thought of as the ideal penal system is in reality one with multiple problems of astronomical proportions, with the cost to the taxpayers of this State, in order to cure the faults and defects of Texas’ penal system, likely to run into the millions of dollars. See Ruiz v. Estelle, 503 F.Supp. 1265 (D.C.S.D.Tex.1980); Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.1982). Thus, the majority by its opinion, overrules a trial judge who is far better aware of the degree of supervision Dockery needs than are the members of this Court. We should, therefore, defer tо Judge McDonald‘s decision that Dockery will no longer benefit from further incarceration, by liberally construing the shock probation law.
The purpose of the time limitation on the jurisdiction of a trial judge to grant shock probation is obviously similar to the twofold function of the limitation of
The inmate, Dockery, filed his application for shock probation 100 days before the time limit had expired, and followed it up with a letter to Judge McDonald аbout 3 weeks later, thus clearly giving Judge McDonald ample notice to timely request “a full and complete copy of the defendant‘s penitentiary record while incarcerated,” see
If the majority of this Court is concerned that an inmate might abuse the proposed lenient constructiоn of the statute, and not file his application until there is insufficient time to reasonably obtain the inmate‘s penitentiary record and conduct a hearing, it could adopt the rule proposed by Justices Goldberg and Morgan, see United States v. Mendoza, 565 F.2d at 1291-1292, and require that the inmate must file his application by some arbitrary deadline, such as within a certain number of days before the deadline, before he could take advantage of any grace period.
There is yet another sound reason why this Court should reconsidеr the issue, and resolve it favorably to the Respondent, Judge McDonald. This Court‘s decisions of Houlihan, Adams, and Tamez, supra, were all decided under a shock probation statute which did not require a hearing before shock probation could be granted by a trial judge. Theoretically, if a trial court judge was inclined to grant shock probation under the statute before it was amended, and it was noted that insufficient time remained in order to conduct a hearing, the trial judge could have summarily granted shock probation, giving the applicant the benefit of the doubt where the failure to conduct the hearing was the result of the trial court‘s inability to earlier commence the procedures. I find that under the present statute this summary grant is no longer possible.
I have also concluded that there is one terrible result that may flow from this Court‘s decision, which stems from a literal reading of the shock probation statute. The terrible result of today‘s decision is that the decision now requires the applicant, or his attorney, family, or friends, to inundate a trial judge with repeated requests to begin the proceedings, if they have not obviously been commenced. I believe that many trial judges prefer not to commence proceedings until near the end of the time limit, so that they will have a more complete record of the applicant‘s behavior while he or she is incarcerated, on which record they will in all probability base their decision whether or not to grant the application or motion. Since most apрlicants, their families, friends, and attorneys may not be aware of a given trial judge‘s habit of conducting a hearing at a late date, after today‘s decision I predict that those persons will barrage a given trial judge with oral or written requests so that he will not forget about the time limitation, which I believe may cause a given trial judge to become so irritated that he will summarily deny the application, when he possibly would have otherwise granted it.
I, therefore, believe that the shock probation statute should be construed and interpreted in such a manner as to permit the trial courts of this State to act on an application or motion for shock probation, which has been timely filed, within a reasonable
I, therefore, conclude that the majority‘s opinion, as well as this Court‘s decisions of Houlihan, Adams, and Tamez, supra, effectively decrees that trial court judges turn into pumpkins at midnight on the 180th day, thereby depriving an otherwise deserving inmate of his coach to the state of probation. In situations like the one before us today, such a holding that the majority makes brings about an unconscionable result. Because I believe that the shock probation law, in light of the purposes for which it was enacted, is a humanitarian type statute, it should be, as Judge McDonald did, interpreted in the spirit of humanitarianism, and not according to former doctrines governing common law pleadings.
I, therefore, respectfully dissent to the majority‘s holding, which I believe applies too literal an interpretation to a worthwhile statute.
Louis Edward BLACKMON, Appellant, v. The STATE of Texаs, Appellee.
No. 218-82.
Court of Criminal Appeals of Texas, En Banc.
Dec. 8, 1982.