NUMBER 13-11-00110-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: BENITO LOPEZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Vela

Memorandum Opinion by Justice Benavides1

By petition for writ of mandamus filed on February 25, 2011, relator, Benito 

Lopez, pro se, seeks an order requiring the trial court2to comply with the Interstate 

Agreement on Detainers Act (the ―Act‖) and dismiss relator‘s indictment and detainer. 

See TEX. CODE CRIM. PROC. ANN. art. 51.14 (Vernon 2006). Relator alleges that he is 

presently incarcerated in federal prison in South Carolina and has an outstanding 

 

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See TEX. R. APP. P. 52.8(d) (―When denying relief, the court may hand down an opinion but is 

not required to do so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).

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 The respondent in this original proceeding is the Honorable Angelica E. Hernandez, Presiding 

Judge of the 105th District Court of Kleberg County, Texas.
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detainer from Kleberg County, Texas. Relator specifically complains that he has been 

denied due process of the law because the District Attorney of Kleberg County has 

failed to comply with the Act, and this failure has denied relator the right to a speedy 

trial. We deny the petition for writ of mandamus.

I. STANDARD OF REVIEW

To be entitled to mandamus relief, relator must establish both that he has no 

adequate remedy at law to redress his alleged harm, and that what he seeks to compel 

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young 

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. 

App. 2007). If relator fails to meet either of these requirements, then the petition for writ 

of mandamus should be denied. See id. As to the latter requirement, the court of 

criminal appeals has stated that it is satisfied ―if the relator can show he has  ̳a clear 

right to the relief sought‘—that is to say,  ̳when the facts and circumstances dictate but 

one rational decision‘ under unequivocal, well-settled (i.e., from extant statutory, 

constitutional, or case law sources), and clearly controlling legal principles.‖ Id.

It is relator‘s burden to properly request and show entitlement to mandamus 

relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. 

proceeding) (―Even a pro se applicant for a writ of mandamus must show himself 

entitled to the extraordinary relief he seeks.‖). In addition to other requirements, relator 

must include a statement of facts supported by citations to ―competent evidence 

included in the appendix or record,‖ and must also provide ―a clear and concise 

argument for the contentions made, with appropriate citations to authorities and to the 

appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that 
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relator must furnish an appendix or record sufficient to support the claim for mandamus 

relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) 

(specifying the required contents for the record).

II. BACKGROUND

Relator asserts that, on June 18, 2009, the Kleberg County Sheriff‘s Office 

placed a detainer on relator by mail with the Inmate Systems Records Office at the 

Federal Correctional Institution in Fort Worth, Texas, where relator was serving a 

federal prison sentence. Relator contends that he filed an ―inmate request to staff‖ at 

this prison regarding a motion for a speedy trial in Kleberg County regarding the 

detainer; however, the staff at the prison did not respond to relator‘s request. In his 

appendix, relator has included a copy of the ―inmate request to staff,‖ which is directed 

to ―Bernard P. Waller/Inmate Systems Manager‖ and is dated July 13, 2009. This form 

includes the hand-written notation that stated, ―I‘d like to talk to you about my detainer 

out of Kleberg County to see if we can take care of it before the BOP moves me farther 

away.‖ The document further provides that, ―today 8-21-9 I asked Mr. Waller if [he] had 

filed with Kleberg Co. my speedy trial motion and he had not.‖ Relator alleges that he 

mailed a motion pursuant to the Act on March 16, 2010 to the Kleberg County District 

Court and to the Kleberg County District Attorney, and that these entities received the 

motion on March 23, 2010. After waiting 180 days without a response, relator filed a 

motion to dismiss for failure to comply with the Act. According to relator, the Kleberg 

County authorities still have not responded to his request or motion. 
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III. INTERSTATE AGREEMENT ON DETAINERS ACT

The disposition of an interstate detainer is governed by the Act as codified in the 

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 51. The Act‘s 

purpose is to ―encourage the expeditious and orderly disposition‖ of ―charges 

outstanding against a prisoner, detainers based on untried indictments, informations, or 

complaints, and difficulties in securing speedy trial of persons already incarcerated in 

other jurisdictions‖ based on the rationale that such charges and detainers ―produce 

uncertainties which obstruct programs of prisoner treatment and rehabilitation.‖ See id. 

art. 51.14, art. I. The Act outlines the cooperative procedure between the jurisdictions 

to be used when one jurisdiction is seeking to try a prisoner who is currently imprisoned 

in another jurisdiction. State v. Votta, 299 S.W.3d 130, 134-35 (Tex. Crim. App. 2009). 

When a state with an untried indictment, information, or complaint against a prisoner 

files a detainer with the institution in the state that is holding the prisoner, the prison is 

required to promptly inform the prisoner that a detainer has been filed against him and 

that he has the right to request final disposition of the charges. TEX. CODE CRIM. PROC.

ANN. art. 51.14 art. III(c). The prisoner may then request final disposition by giving 

written notice to the warden, who forwards the request, along with a certificate 

containing information about the prisoner‘s current confinement, to the prosecuting 

officer and the appropriate court of the prosecuting officer‘s jurisdiction. See Votta, 299 

S.W.3d at 134-35. Under article III(a) of the Act, the prisoner must then be brought to 

trial in the receiving state within 180 days from the date on which the prosecuting officer 

and the appropriate court receive this written request for a final disposition, unless a 

continuance is granted under the Act. See TEX. CODE CRIM. PROC. ANN. art. 51.14, art. 
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III(a); Votta, 299 S.W.3d at 134-35. If the prisoner is not brought to trial within 180 days, 

the trial court must dismiss the indictment with prejudice. TEX. CODE CRIM. PROC. ANN. 

art. 51.14, art. III(d); Votta, 299 S.W.3d at 134-35.

Article III of the Act specifies the procedure to be followed when a prisoner seeks a 

final disposition of an outstanding indictment, information, or complaint. See TEX. CODE 

CRIM. PROC. ANN. art. 51.14, art. III. In summary, the Act provides that: 

1. The person seeking the disposition must cause to be delivered to the 

prosecuting officer and the appropriate court of the prosecuting officer‘s 

jurisdiction written notice of the place of his imprisonment and his request 

for a final disposition.

2. The request must be accompanied by a certificate of the appropriate 

official having custody of the prisoner, stating the term of commitment 

under which the prisoner is being held, the time already served, the time 

remaining to be served on the sentence, the amount of good time earned, 

the time of parole eligibility of the prisoner, and any decision of the state 

parole agency relating to the prisoner.

3. The prisoner must send the written notice and request for final disposition 

to the official having custody of him, who must promptly forward it together 

with the certification to the appropriate prosecuting official and court by 

registered or certified mail, return receipt requested.

See id. art. III(a), (b).

IV. ANALYSIS

In the instant case, the appendix accompanying the petition for writ of mandamus 

includes copies of: (1) a letter dated June 18, 2009, from the Kleberg County Sheriff‘s 

Office requesting the placement of a detainer on relator for ―POSSESSION OF 

COCAINE W/ INTENT TO DELIVER – FAILURE TO APPEAR;‖ (2) a form dated July 8, 

2009 entitled ―IAD – Notice of Untried Indictment‖ which informed Lopez about the 

detainer and the appropriate procedures to be followed under the Act; (3) the 

aforementioned ―inmate request to staff;‖ (4) a ―Motion to Comply with Interstate 
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Agreement on Detainers . . . or, In the Alternative to Dismiss Charges;‖ (5) return 

receipts indicating service of documents on the District Clerk and District Attorney of 

Kleberg County on March 23, 2010; and (5) a ―Motion to Dismiss Charges for Failure to 

Comply with the [Act].‖ 

We cannot determine from the record before this Court whether the prescribed 

and required procedure was followed in transmitting relator‘s documents to the court 

and whether the trial court received all of the documentation required by the Act. See 

id. art. 51.14, art. III(a), (b). Consequently, we cannot conclude that the trial court has 

abused its discretion in failing to rule on relator‘s motion. See id.; see also In re Ivey, 

No. 03-10-00693-CV, 2010 Tex. App. LEXIS 9198, at *2 (Tex. App.–Austin Nov. 17, 

2010, orig. proceeding) (mem. op.) (―An inmate is not entitled to mandamus relief 

dismissing the charges against him under the [Act] if he fails to demonstrate compliance 

with the [Act]‘s requirements‖); In re Cantu, No. 04-09-00527-CR, 2009 Tex. App. 

LEXIS 7965, at *2 (Tex. App.–San Antonio Oct. 14, 2009, orig. proceeding) (mem. op.,

not designated for publication) (relator must show compliance with provisions of statute 

to obtain mandamus relief); In re Montgomery, No. 12-09-00115-CR, 2009 Tex. App. 

LEXIS 3092, at *3 (Tex. App.–Tyler May 6, 2009, orig. proceeding) (mem. op., not 

designated for publication) (same); In re Hembree, No. 07-05-00320-CV, 2005 Tex. 

App. LEXIS 7826, at *2 n.2 (Tex. App.–Amarillo Sept. 23, 2005, orig. proceeding) (mem. 

op.) (same); Burton v. State, 805 S.W.2d 564, 575 (Tex. App.–Dallas 1991, pet. ref‘d) 

(holding that 180-day timeline under the Act did not begin where court was not notified 

of request under the Act).
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V. CONCLUSION

The Court, having examined and fully considered the petition for writ of 

mandamus and the applicable law, is of the opinion that relator has not met his burden 

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Accordingly, 

relator‘s petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).

__________________________ 

GINA BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed this the

9th day of March, 2011.