in Re Tracy Scott Hergert

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-558 CV ____________________ IN RE TRACY SCOTT HERGERT Original Proceeding MEMORANDUM OPINION Tracy Scott Hergert seeks mandamus relief to compel the trial court to credit time served while he was being held at a substance abuse facility pending return to the custody of the trial court. In Cause No. 88998, the trial court ordered Hergert to complete a substance abuse felony program as a condition of his deferred adjudication community supervision. Hergert's failure to complete the program resulted in the revocation of his community supervision. We affirmed the conviction on appeal. See Hergert v. State, 197 S.W.3d 394 (Tex. App.-Beaumont 2006, no pet.). The Court of Criminal Appeals subsequently dismissed Hergert's application for writ of habeas corpus with a notation that the sentence had been discharged. See Ex parte Hergert, No. WR-66,255-01 (Tex. Crim. App. Dec. 6, 2006). This mandamus proceeding followed. Hergert contends the trial court abused its discretion in failing to credit his sentence with time spent on community supervision at the Jester 1 Unit between his execution of a refusal of treatment form and his transfer to county custody. The relator bases his claim for relief on Article 42.03, which provides that "[i]n all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court." See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2006). Hergert argues he is entitled to time on his sentence because Jefferson County placed a detainer on him at the SAFP facility. When Hergert filed his request for time credit with the trial court, the court coordinator requested documentation. The mandamus petition does not mention any further communications with the trial court. Hergert suggests the trial court should ascertain the date he was discharged from the drug treatment program and credit his sentence because, although Hergert made a good faith effort to obtain verification, he did not receive a response to letters he sent to the Jester 1 Unit Program Administrator and to the Department of Criminal Justice Classifications and Records Department. These letters are inadequately addressed, are not referenced by the identification number assigned to Hergert, and state he attended the facility in the wrong year. Furthermore, the relator does not suggest that he communicated his difficulty in obtaining documentation to the trial court. The trial court has the authority to correct the omission of presentence jail credit through judgment nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004). Mandamus is available to compel the trial court to respond to a nunc pro tunc motion for presentence jail credit. Id. at 149. In this case, however, the relator has not shown that he is entitled to the relief sought or that the motion awaited disposition for an unreasonable length of time under the circumstances. See Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App.-Amarillo 2001, orig. proceeding). Moreover, Hergert's confinement in the SAFP facility was a condition of community supervision. He failed to demonstrate that the act sought to be compelled is purely ministerial and that relator has a clear and indisputable right to relief. See State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). The petition for writ of mandamus, filed December 19, 2006, is denied. WRIT DENIED. PER CURIAM Opinion Delivered January 18, 2007 Before McKeithen, C.J., Gaultney and Kreger, JJ.