Even if a case is “finished” and an inmate is confined, prosecutors still have a continuing duty to seek justice. This includes addressing incorrect time credits.
Please note: This information is regarding requests for time credit made after conviction. For information regarding requests made at the time of conviction, please see Articles 42.0199, 42.03, 42A.302, 42A.559, 42A.603, and 42A.755 of the Texas Code of Criminal Procedure.
I cannot imagine being confined in prison. I could not bear the bars, the restrictions, or the constant monitoring. Considering how much I like my privacy and my independence, prison sounds like hell on earth to me. I would not want to serve a single minute longer than required, and I think that is why I take time credits so seriously.
Fun fact: Inmates write a lot. They file motions, pleadings, and writs. They send letters to judges, sheriffs, and district attorneys. They complain about food, treatment, paper choices, and cellmates. Because of this, it is easy to just brush the letters aside, but I would implore you to read them before sending them to the circular file.
Our criminal justice system is one of checks and balances. And while our part in the case may be “finished” and the defendant is now the “problem” of the sheriff, court, or Texas Department of Criminal Justice (TDCJ), prosecutors still have a continuing duty to seek justice. The reality is that sometimes people fall through the cracks.
In February 2014, a letter from a misdemeanor defendant crossed my desk. He had been convicted in 1999 and received a 180-day sentence. However, in December 2013, he was pulled over for a traffic violation and arrested on an outstanding warrant arising from that discharged 1999 conviction. When I received his letter, which had been bouncing around the office, he had been held for nearly three months on a warrant that should have been cleared when he was convicted.
A few months later, I found a letter from a felony defendant who pled guilty for time served. She should have been released the day she pled but, due to another clerical error, she had been sitting in jail for an additional month.
I share these stories to highlight that clerical errors do happen and that pro se defendants may be entitled to release. For those reasons alone, we should take a claim of missing time credits seriously.
At the post-conviction stage, time credits are divided into pre-trial and post-trial. Generally, the trial court awards pre-trial credit and the Texas Court of Criminal Appeals awards post-trial credit in felony cases.1 Therefore, the vehicle for relief for each is different.
Key terms for pre-trial credits
Nunc pro tunc order: Order signed by the trial court amending clerical errors in the judgment so that the judgment correctly reflects what happened at the time of the conviction.
Pre-trial time: Time from date of offense to date of conviction. Also called pre-sentence time.
TDCJ website: Website updated with inmate’s discharge date, parole eligibility date, mandatory supervision date, and sentence(s). Currently located at https://offender.tdcj .texas.gov/OffenderSearch.
Ybarra claim: A Texas Code of Criminal Procedure Art. 11.07 claim for pre-trial time credits. Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004).
A request for pre-trial time credit may arrive in the form of an Art. 11.07 application for writ of habeas corpus (called an “11.07 writ” for this article’s purposes), a motion for nunc pro tunc, or an informal inquiry, such as a pro se letter. (See the chart below for an overview of the process.)
11.07 writ. If raised in an 11.07 writ, the issue is not cognizable (and the writ will be dismissed) unless the applicant alleges specific facts that he would have discharged his sentence if awarded the complained-of credit because such a claim rises to the level of a due process violation.2 These claims are called Ybarra claims because they are dismissed pursuant to Ex parte Ybarra.3 In most cases, a simple online check and calculation is sufficient to respond to these claims. For example, “Inmate states that he has been denied 365 days of pre-trial credit (reason irrelevant). A check to the TDCJ website shows that inmate has two years left on his sentence. Even if granted the pre-trial credit requested, he would not discharge his sentence. DISMISSED UNDER YBARRA.”
That being said, I suggest taking a look at his claim to see if it has merit. If it is clear4 he is entitled to the pre-trial credit, file a motion for judgment nunc pro tunc to correct the judgment to accurately reflect the time to which the inmate is entitled. The trial court will then send the judgment nunc pro tunc to TDCJ, and the inmate’s time credits will be updated. If it is not clear, the inmate still can file a motion for nunc pro tunc himself.
Most pre-trial credits raised in 11.07 writs are dismissed as not cognizable.
Motion for Judgment Nunc Pro Tunc. The proper vehicle for relief for pre-trial credits is a motion for judgment nunc pro tunc.5 While there are no deadlines for the State’s answer or the trial court’s order, I have found that the trial court may rule before I have even been served a copy of the motion for nunc pro tunc. Even when this happens, the State should still review the filing and make sure the trial court ruled properly. If the trial court denied relief, the State should file an answer recommending that relief may be granted and include a proposed nunc pro tunc order. If the trial court granted too much time, the State should decide whether the erroneous time is worth fighting for. The granting of a motion for nunc pro tunc may be appealed by the State.6
When is a defendant entitled to pre-trial credit? Pursuant to Art. 42.03 of the Texas Code of Criminal Procedure, a defendant is entitled to credit for confinement:
• in any jail for this7 case from arrest until sentence;
• in a mental health facility, residential care facility, or jail pending competency determination or while restoring competency;
• in a substance abuse treatment facility if the inmate successfully completes the treatment program at that facility;8 and
• except the first 180 days of confinement served as a condition of community supervision.
Also, it should be noted that a defendant does not have to spend a full 24 hours confined to receive a full day credit; a partial day may be sufficient.10 But, as different entities calculate time differently, the best way to insure that the defendant receives the amount of time the court intended is to list the amount of credited time as the number of days, not by date range.
What evidence can be used? The following evidence can be used to determine if an inmate is entitled to pre-trial time credit:
• records from a sentencing proceeding (judgment, plea papers, docket sheet, criminal proceedings, plea record, etc.);
• jail records;
• letter or affidavit from jail;
• TDCJ website;
• admission or discharge records from a substance abuse treatment facility, mental health facility, and residential care facility; and
• demonstrative table or graph breaking down and explaining the times confined (with supporting evidence).
But remember: While correcting time credits may be done through a nunc pro tunc order, the nunc pro tunc is still limited to clerical errors and not judicial errors. That is, the trial court may grant additional time through a nunc pro tunc order only if it “is so obviously spelled out that the judge would not have any discretion about whether” to grant the time.11 The judge may not later decide discretionary credit should have been granted and grant the credit through a nunc pro tunc order. For example, the first 180 days of confinement as a condition of community supervision is purely discretionary and, unless the trial court indicated on the record at the time of sentencing that it was awarding this credit, the defendant cannot be awarded it through a nunc pro tunc order.
But again, if the trial court grants the defendant too much time, is this something the State should appeal? If the trial court refuses to rule on or grant a proper motion for nunc pro tunc, either party may file a petition for writ of mandamus in the intermediate appellate court.12
Pro se letter. As expected, a pro se letter does not require any action by the State or the trial court. However, like an Art. 11.07 writ, I would suggest looking into it to make sure the inmate is not entitled to relief. If he is entitled, file a motion for judgment nunc pro tunc so that the judge may properly award him time and TDCJ will apply it to his sentence.
Key terms for post-trial credits
Blue warrant: Warrant issued for parole violations. Also called a parole violator warrant or pre-revocation warrant.
Post-trial time: Time from date of conviction to discharge of sentence.
Street time credits: Credits for time while on release to parole/mandatory supervision. (Tex. Gov’t Code §508.283.)
TDCJ General Counsel: Counsel who handles affidavit requests and who can answer the State’s time credit, parole, and mandatory supervision inquiries. The phone number is 936/437-6700, and the email address is [email protected]
Warrant issued: When TDCJ issues a blue warrant.
Warrant executed: When an inmate is arrested or held on a blue warrant.
Like a request for pre-trial credit, a request for post-trial time credit will arrive in the form of a motion for nunc pro tunc, an 11.07 writ, or an informal inquiry, such as a pro se letter. (See the chart below for an overview of the process.)
11.07 writ. This is the proper vehicle for filing a request for post-conviction time credit. But the inmate is required to:
1) file a complaint through the time credit dispute resolution system first and
2) receive a written decision or let 180 days pass without receiving a written decision.13 The only exception is when the inmate is within 180 days of his presumptive parole date, date of release to mandatory supervision, or date of discharge.14 If this is not done, the writ will be dismissed.15
There are several types of post-conviction time credits. An inmate may request:
• good time or work time credits;
• blue warrant or flat time credits; and
• street time credits.
Good time/work time. These credits are in the within the sole discretion of TDCJ. A denial claim is not cognizable in an article 11.07 writ.16
Blue warrant time/flat time. An inmate is entitled to all the time he was confined on a blue warrant even when the blue warrant is withdrawn.17
Street time. In 2001, street time credits were created. According to Tex. Gov’t Code §508.283(c), an eligible inmate may be entitled to credit while on parole or mandatory supervision release if on the date a blue warrant was issued (not executed), the remaining portion left on his sentence was less than the amount of time on release.
But the inquiry does not stop there because certain people are ineligible for street time credit. First, street time credits apply only to “any revocation that occurs on or after September 1, 2001.”18 And persons who are listed as ineligible for mandatory supervision pursuant to the version of Tex. Gov’t Code §508.149(a) in effect at the time their parole or mandatory supervision was revoked are not eligible.19 Note: An inmate eligible for release to mandatory supervision may still be ineligible for street time credits.
In most cases, an affidavit from a TDCJ representative is needed to explain what time credits the inmate has received. The affidavit will typically also include why the inmate has been denied certain credits, e.g., street time credits. Other evidence that can be used:
• TDCJ website;
• local jail records;
• other jail records;
• other judgments; and
• a demonstrative table or graph breaking down and explaining the times confined (with supporting evidence).
This information may show:
1) when a blue warrant was executed,
2) when a blue warrant was withdrawn, and
3) the amount of time confined on a blue warrant.
But, this information will not show:
1) when the blue warrant was issued or
2) when the inmate was released on parole or mandatory supervision.
For this information, an affidavit from TDCJ will be needed. In short, when in doubt, request an order designating issues (ODI) and an order for an affidavit from TDCJ.
Typically, if there is an error with TDCJ’s calculations for time credit, TDCJ will discover the error when it is preparing its affidavit. However, if officials there miss the error, contact the general counsel to let her know. If TDCJ does not correct the issue, request that relief be granted.
Motion for Judgment Nunc Pro Tunc. Generally, the Texas Court of Criminal Appeals has exclusive jurisdiction to grant post-conviction relief from a final felony conviction.20 And post-conviction time credits are included under this umbrella of post-conviction relief.21 Therefore, a motion for judgment nunc pro tunc is not the appropriate vehicle for relief.22
If an inmate files a motion for judgment nunc pro tunc requesting post-conviction time credits, it should be denied. That being said, if it is obvious from the record that the inmate has been denied post-conviction time credits, bringing the error to the attention of the TDCJ general counsel may fix the issue.
Pro se letter. Again, a pro se letter does not require any action by the State or the trial court. However, the error may be fixed without the need for an 11.07 writ or court intervention. If there is a clear error, consider notifying the general counsel of TDCJ.
No matter how few, any time credits are important. Even if it is for just one day, the inmate should be given credit.23 That is justice.
1 In misdemeanor cases, the trial court retains the authority to resolve post-conviction issues. See Tex. Crim. Proc. Code Art. 11.09.
2 See Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010).
3 149 S.W.3d 147, 148 (Tex. Crim. App. 2004).
4 Only if the inmate is clearly entitled by statute or there is documentation in the record that the trial court awarded the credit.
5 See Ex parte Ybarra, 149 S.W.3d at 148.
6 See Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007).
7 If a defendant who is currently on bond in the present case is arrested on a separate case, he is not entitled to credit on the present case unless bond has been surrendered or a hold is placed on the defendant in the present case.
8 This includes credit even when the defendant does not successfully complete the other stages of the substance abuse treatment program.
9 See Tex. Code Crim. Proc. Art. 42.03, §2.
10 I typically agree to time for a day even if the defendant spent any time on that calendar date confined because my records do not clearly demarcate specific hour and minute of admission and release.
11 Collins v. State, 240 S.W.3d at 928.
12 See Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010).
13 See Tex. Gov’t Code §501.0081(b).
14 See Tex. Gov’t Code §501.0081(c).
15 See Ex parte Stokes, 15 S.W.3d 532 (Tex. Crim. App. 2000).
16 See Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App. 1988) (good time credits); Tex. Gov’t Code §498.003(d) (work credits are treated as good time credits).
17 See Ex parte Canada, 754 S.W.2d at 668.
18 See §11 of Acts 2001, 77th Leg., ch. 865.
19 See Tex. Gov’t Code §508.283(c); Ex parte Noyola, 215 S.W.3d 862, 867 (Tex. Crim. App. 2007).
20 See Bd. Of Pardons & Paroles ex rel. Keene Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); Tex. Code Crim. Proc. Art. 11.07, §5.
21 See Ex parte Canada, 754 S.W.2d 660, 663 (Tex. Crim. App. 1988).
22 In re Alexander, No. 12-10-00233-CR, 2010 WL 3000029 (Tex. App.—Tyler Jul. 30, 2010) (orig. proceeding) (not designated for publication).
23 See, e.g., Ex parte Bastable, No. AP-76583, 2011 WL 2473239 (Tex. Crim. App. Jun. 22, 2011) (not designated for publication).