# Van Brown v. Underwood

> Court of Appeals of Texas · March 17, 1988 · 748 S.W.2d 513

URL: https://www.frixlaw.com/law-library/cases/5071534

## Case

- **Full name:** Charles Van BROWN, Relator v. Hon. Olen UNDERWOOD
- **Court:** Court of Appeals of Texas
- **Decided:** March 17, 1988
- **Citations:** 748 S.W.2d 513; 1988 Tex. App. LEXIS 992; 1988 WL 44043
- **Precedential status:** Published
- **Opinion:** Dissent by Burgess
- **Judges:** Brookshire, Burgess
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5071534

## Opinion text

BURGESS, Justice,
dissenting.
I respectfully dissent to the manner by which the majority disposes of this manda *516 mus action. Relator sought alternate remedies. He first sought a mandamus order from this court requiring the district court of Montgomery County to credit him with jail time. In the alternative, he sought an order from this court requiring the district court to consider and rule on his motion for jail time filed below. The majority now writes on the merits of the primary pleading.
This is neither well-founded nor necessary. I do not believe it is well-founded because this is not a matter wherein mandamus lies. I do not quarrel with the general proposition stated by our court of criminal appeals in Dickens v. Ct.App., 2nd Sup.Jud.Dist., 727 S.W.2d 542, 547 (Tex.Crim.App.1987) and Perkins v. Ct.App., 3rd Sup.Jud.Dist., 738 S.W.2d 276, 281 (Tex.Crim.App.1987) in that mandamus may lie in criminal law matters. This general proposition does not lessen the standard that mandamus will lie only if no other adequate remedy or law is available and the act sought to be compelled is ministerial rather than discretionary in nature. Id. Further, an act is ministerial if it constitutes a duty clearly fixed by law and can be accomplished without the exercise of judgment. Id.
In the instant case, I do not believe this court could issue a writ of mandamus concerning the subject matter of credit for jail time. First, as noted by the majority, this has historically been accomplished by post-conviction writ of habeas corpus in accordance with TEX.CODE CRIM.PROC.ANN. art. 11.07 (Vernon 1977 & Supp.1988). See Ex parte Pizzalota, 610 S.W.2d 486 (Tex.Crim.App.1980). To even analyze the factual contentions in a mandamus proceeding establishes an imprudent precedent. Second, while the granting of jail time is mandatory under TEX.CODE CRIM.PROC. ANN. art. 42.03 (Vernon 1979 & Supp. 1988), the determination of the amount of creditable jail time certainly involves discretion or judgment. Thus, mandamus is not proper.
Last, the majority’s actual consideration of the mandamus and denial is unnecessary because the question is moot. The state filed a motion to dismiss the petition for writ of mandamus as moot and attached a certified copy of an order of the trial court denying motion for jail time filed below. This should end the matter for this court. The petition for writ of mandamus should be denied for want of jurisdiction or at the least dismissed as moot. The majority errs when they deny the writ on its alleged merits. I, therefore, respectfully dissent to the manner by which the majority disposes of this original proceeding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5071534. Public record. Not legal advice.