## NO. 12

- 21

- 00127

- CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE:

SARAH PERERO , REL AT OR § § § ORIGINAL PROCEEDING

MEMORANDUM OPINION Sarah Perero filed this original proceeding to complain of Respondent ’ s failure to c orrect ja il time credit and assessment of court costs. 1 We deny the writ

.
B ACKGROUND On September 21, 2018, Rela tor was arrested for theft of property in an amount more than $750 but less than $2,500 , possession of a controlled substance , and assault on a public
servant . She was released on S eptember 23. In t he theft case, s he was ind icted on October 3, 2019 , and pos ted bond on October 28 , without bond co nditions

. In the assault case , Relator posted bond on December 30, 2019

. In January 2020, Respo ndent signed the following notice in both the theft and assault causes :

The Defendant has unsigned conditions of bond or other bond issues pending before the Cour t. This is a direct violation of your bond and if the conditions of bond are not signed, the Court shall deem your bond insufficient, reset your bond and order a warrant for your arrest. Defendant is ORDERED to i mm ediately com e to the 7th District Court O f fice on the 2 nd Floor of the Smith County Courthouse, Room 203 and see Criminal Coordinator T oni White, to Sign the conditions in order for your bond to be sufficient. A waiver of arraignment shall not be accepte d unless the D efendant has signed the condit ions of bond and is in compliance with all bond conditions and requirements.

1 Res pondent is th e Honorable Kerry L. Russell , Ju dg e of th e 7th District Court in Smith County, Texas. The State of Texas is the R eal Party i n Interest.2 Relator subse quently s igned bond conditions in the assault case

. I n July , Respondent received a bond violation report in the assault case and issued an arrest warrant

. The record contains a j ail records search , which indicates that Relator was booked on October 31, 2 0 20 , and the charges listed i n clude assault and thef t. On December 4 , 2020, Relator pleaded “ guilty ” to the theft charg e . At a se ntencing hearing on February 25 , 2021, she informed Respondent th at she wo uld rather accept a six

month jail sentence over t hree years ’ defer red ad judication as long as she received credit for all the time she already serv ed. Respondent also co n sidered the assault case and unfiled possession charge as part o f the pun is hment pur s uant to Section 12.45 of the Texa s Penal Code. 2 The Smith County Sher iff ’ s Department provided a “ credit for time served ” sheet, which indicates that Relat or was incarce r ated on the theft charge Septem ber 21 , 22, and 23 of 2018 and February 25, 2021, for a total of four days. T he judgment gives Re lator four days of jai l time credit. On M arch 17, Relator filed a motion for new trial on punish ment

. She stated th at t he amount of jail time credit she would receive factored into her d ecision to accept the sentence and she be lieved she had more credit than reflected in the judgmen t

. At the hearing thereon , Respondent stated:

... I think she wanted the more serious charge t hrown out through the 12.45, and she thought she
was gett ing credit on the case she was pleading on for the time she ’ d been locked up on t he other charge because sh e ’ d violated her bond conditions by using drugs while she was on bond.

... Not the first defe nd ant that, I guess, made the misstep of not getting their bond company to go off their bond on their other case or their other cases. So it happens

-- not often, but fairly regula rly

-- where they ’ re in jail on one case; they ’ r e not in jail on the other ca se

. They think, in their mind, that they ’ re getting credit on all the cases, just because they ’ re in jail. Which, of course, the law do esn ’ t provide for. It can be fi xed, but it r equires having the bond company go off the bond.

Relator responded that “ [d] u e to a clerical paperwork error, it looks like they didn ’ t come off of my bond. But we notified them within 48 hours of my arrest. We r eceived our surety money back. And I ’ ve sat my six months. ” Respondent replied as follows:

It ’ s not the first defenda nt th at ’ s had multiple cases, that they ’ ve been in jail on one and not on the other, and they ’ re getting credit on one and they ’ re no t ge tting credit on the other.

2 See T EX

. P ENAL C ODE A NN

. § 12.45 (West 20 19 ) (admission of unadjudicated offense)

.3 The l aw says you get credit on c ase by case. In other words, you don ’ t sit in jail on one an d y ou get to transfer that credit over to your other case.

Now, were you in jail? Yes, you were. Should your case have been handled l ong before it was? Yes, it should have

... .

... And then, lo and b ehold, you test dirty, which brought about the warran t that got you put into jail on the assault charge. We don ’ t typically put people on bond conditions on theft charges, just beca use the syste m would be overrun. So you were not on bond conditions on the t heft charge. Thus, when you violated your other bond , there was nothing done on that bon d. Now, you ’ ve told me that you let the bond company know that they needed to go off of your bond. And t hey did file a surety off affidavit in the a ssault charge. It c ame into the court. Court looked at the file. The fi le showed you ’ d already lost your bo nd, so there was no bond for them to go off of in that case. Your bond company may have mess ed up. We can ’ t control that. We don ’ t go back and fix th ings

... . Respondent expressed a willingness to grant a new trial as to the enti re judgment, not j ust punishment, but exp lained there would be no further plea agreements and Rel ator would have to
proce e d on both t he theft and assault cases

. At the request of Relator ’ s counsel, Respondent denied the motion for new trial. On A pril 30, Respond ent signed an order of dismissal as to the assault charge. That same day, Relator filed a notice of a ppeal , and t hat appeal remain s pending before this C ourt in cause num ber 12

- 21

- 00067

- CR

. On May 3, Relator filed a mo tion for judgment n unc pro tunc to correct a clerical error. S he mai ntained that the judgment ’ s calcula tion of jail time cr edits was erroneou s becau se she

was in custody from October 31, 2020 through Febru ary 25, 2021

. Thus, she requested a corrected judgment ref lecting 12 1 days jail time credit, i.e., t he original four days plus the 117 days between October 31 and February 25

. In an email to Respon dent ’ s cour t coordi na tor , the State ’ s counsel said that , after reviewing documents and checking the records of Relator ’ s confi nement, he believed those records to be accurate and the State d id not object to the grant of a judgment nunc pro tunc. On May 6, Respondent denied Relator ’ s m otion. I n the order , Respondent made several handwritten not at i ons : (1) Relator posted bond on the theft charge on October 28, 2019 without bond conditions, (2) in the assault case , Relator posted bond on December 30, 2019 an d si gned bo nd conditions on Febr uary 14, 20 20, (3) Respondent received a bond violation report in July 2020 in the assault cas e and ordered a warrant, (4) Relator was arrested o n the assault charge on October 30, 2020, (5) Relator was on bond in the theft case4 until sen tenced on February 25, 2021 and “ was given ALL of her time cred its

– the 4 days ; ” ( 6 ) R elator is not entitle d to additional time credits from the assault case that was dismissed pursuant to a plea bargain under Article 12.45 , an d ( 7 ) t he thef t charge di d not replace the assa ult charge. O n June 3, Relator filed a notice of appeal to challe nge Respondent ’ s denial of the motion. That notice of appeal was filed in appellate cause number 12

- 21

- 00 067

- CR . Relator filed this original procee ding on August 9.

A VAILABILITY OF M ANDAMU S To obtain mandamus relief in a criminal case, the relator must show that he does not have an adequate remedy at law and the a ct he seeks to compel is ministerial (not involving a discretionary or judicial decisio n). Sta te ex rel. Young v. Sixth Judicial Dist. Court of Appeals , 236 S.W.3d 207, 210 (Tex. C rim. A pp. 2007) (orig. proceeding). If the relator fails to satisfy either prong of this test, mandamu s relief should be denied. I d

.

D ENIAL OF M OTION FOR N UNC P RO T UNC J UDGMENT Relator contends that Respondent awar ded her only four days of jail time credi t when she was entitled to credit for time she spent in jail from October 31, 2020 through February 25, 2021

. Applicable Law T he convicting judge s hall give th e defendant credit on h er sentence f or the ti me she spent in jail for the case, including co nfinement served as described by Artic le 46B.009 and excluding conf inement served as a condition of community superv ision, from the time of her

arres t and confine me nt until her sentence

. T EX

. C ODE C RIM

. P ROC

. A NN

. art 42.03 § 2(a)(1) (West Supp. 20 20 ) ; see T EX

. R. A PP

. P. 23.2

. Based o n Article 4 2.03 ’s plain language , “ the

cr edit at issue relates not just to any time the defendan t spent incarcerated before conviction. ” Collins v. Stat e , 31 8 S.W .3d 471, 473 (Tex. App.

— Amarillo 2010, pet. ref ’d ). “ Rather, it is the time one is incarcerated for the case in which he is ult imately tried and convicted. ” Id .; see Ex parte Crossley , 586 S.W.2d 545, 546 (Tex. Crim. App. 1979) (en banc) ( “ O n th e face of it, the applicant was not confined in the same cause for which he was sentenced ”) ; see also Williams v. State
, 25 3 S.W.3d 673, 677 (Tex. Crim. App. 2008) (courts con stru e statute acc o rding to plain language unless language is ambigu ous or would lead to absurd results that legi s lature could not have intend ed ) ; C o oper v. State , No. 05

- 19

- 00229

- CR, 2020 WL 3496365, at *3 (Tex. App.

—5 Dallas June 29, 2020, no pet.) (mem. op ., n ot designated for publication)

. Th e statute ’s language does no t authoriz e time credit in one case for confinement in another case. In r e Carpen ter , No. 12

- 13

- 00146

- 147

- CR , 2013 WL 6388 467, at *2 (Te x. App.

— Tyler Dec. 4, 2013, orig. proceeding) (mem. o p. ; not designate d for publication). When “ a defendant can show indisputably that he has been denied jail

- time credit for a
per iod of pre

- trial incarceration for the identical ‘ case ’ for which he was c onvicted and sentenced, he is entitled to relief fr om the convicting court in the form of a judgment nunc pro
tunc and, failing that, by writ of mandamus in the court of appeals. ” I n re Brown , 343 S.W. 3d 803, 805 (Tex. Crim. App. 2011) ; s ee Ex parte Flore nce , 319 S.W.3d 695, 696 (Tex. Crim. App. 2 010)

. A nal ysis It is undisputed that Relator is entitled to jail credi t for September 21 , 22, and 23 of 2018

a n d February 25, 2021, for a tot al of fou r days. T he record also ind icates that when Rela tor was incarc erated on the assault case, she remained on bond in t he theft case because the bond
company failed to comply with Artic le 17. 16 of the Texas Code of Criminal P rocedure , which sets forth the ste ps a surety must take to be relea sed from liabili ty on a bond

. 3 Had Relator ’ s bond been released, she would have been considered jailed on the theft case , not just the assault
case, and would begin receiving jail time credit for the theft case

. Relator a rgues that Resp o ndent ’ s refusal to correct this e rror resulted in a punis hment that exceeded th e parties ’ recommendation, is fundamentally unfair, an d affects her substantial rights. Accor ding to Relator, the “ for the case ” language in Article 42.03 does not foreclose relief because the error was due to the bond comp any ’ s mistake. She explains that her “ substantial rights were affected because the bonding company’s failure to file th e affidavit resulted in the trial court’s refusal to award her jail time c redits, despite its knowledge of her incarceratio n, thereby imp osing a

s entence that exceeded the recommendation by the State. ” However, w hen , as here, a st atute is clear and unambig uous, the Legislature must be understood to mean what it expressed, and it is not for the courts to add to or subtract from the
statute. Lomax v . State , 2 33 S.W.3d 302, 308 (Tex. Crim. App. 2007)

. Under Article 42.03 ’ s

3 Before forfeiture, a surety may relieve the surety of the surety ’ s undertaking by: (1) surrendering the accused into the custody of the sheriff of the county where the prosecution is pending; or (2) delivering to the sheriff of th e county in which the pro secutio n is pending and to the office of the prosecuting attorney an affidavit stati ng t hat the accused is incarcerate d in: federal custody, subject to Subsect ion (a

- 1) , the custody of any state , or any county of this state. T EX

. C ODE C RIM

. P ROC

. A NN

. ar t. 17.1 6(a) (West 2 005 ).6 clear and unambiguous language, Respondent was under a duty to give Relator credi t only o n her

s entence for the time that she spent in jail for the case in which she was convicted and sente nce d , i.e., the theft cas e. Se e T EX

. C ODE C RIM

. P ROC

. A NN

. art 42.03 § 2(a) (1)

. Thus, Respondent was required to determine whether Relator had been denied j ail

- time credit for a per iod of pre

- trial incarceration for the identical “ case ” for which s he was convicted and sentenced

. Brown , 3 43 S.W. 3d at 805. According to the record, Respondent apparentl y concluded that Relator was not entitled to the extra jail time credits because the time she spent in jail for the assault case was not confinement for the case in which she was ultimately tr ied and convicted

. See Crossley , 586 S.W.2d at 546 ; see also C o oper , 2020 WL 3496365, at *3 ; Collins , 31 8 S.W .3d at 473

. B ut

w hether R e lator ’ s incarceration for assault should count as incarceration for the same “ case” as the theft “case” for which s he wa s later convicted is a mat ter of statutory construction

– manife stly a judici al rather than a ministerial function

. Brown
, 343 S.W.3d at 805 ( “ It does not seem to be disputed that the murder and evid ence tampering arose from the same core facts. Whether that should suffice to render them the same ‘ ca se ’ for purposes of Article 42.03, Section 2(a)(1) , however, is a matter of statutory construction

— manifestly a judicial rather than a ministerial fun ction ” )

. We do not review acts of judicial discretion v ia mandamus. Se e id . ( “ I f a claim of pre

- trial jail

- time credit involves a question of the proper construction of the statute, as here, trial counsel would do well to try to preserve the issue for ap pellate resolution. ” ); see also Young , 236 S.W.3d at 210

. Accordingly , Relator cannot show “indisputably” that s he has been denied presentence jail time credit to which s he is entitled. See Brown
, 343 S.W.3d at 805 ; see al so In re Sanch ez , No. 14

- 17

- 00273

- CR, 2017 WL 15 73482, at *2 (Tex. App.

— Hou s ton [14 th D ist.] Apr. 27, 201 7, orig. proceeding) (mem. o p., not designated for publication) (per curiam) (denied mandamu s relief where relator sought jail time credit for time ser v ed on pr eviou s conviction; mandamus relief not available to compel non

- ministerial act ) ; Carpen ter , 2013 WL 6388467, at *2 ; In re Pi nto , No. 04

- 13

- 00389

- CR, 2013 WL 3422971, at *2 (Tex. App.

— San A nt onio July 3, 2013, orig. proceeding) (mem. op., not desig nated for publ ication) ( “ w hether Pinto ’ s incarceration under the illegal re

- entry indictment and conviction should count as incarcera tion for the same

case as the indecency with a child case for pu rposes of article 42.0 3 ” was no t pr oper issue for mandamus)

. Therefore, s he has failed to satisfy the ministerial act requirement for mandamus.7 C OURT C O STS Relator co mplains that the judgment ’ s $261.50 asses sment of cou r t costs is improper because the bill of costs includes costs for the “ c ounty special ty court account ” and overcharges for the “ courthouse se curity fund ” a nd “ l ocal consolidated fee. ” Rel ator also challenges these
costs in her brief filed in the ap peal th at is currently pending. S he maintains that she filed this original proceeding shou ld this Court determine that we lack jurisdiction to consider her app eal. An appellant may challenge the imposition of court costs on dir ect appeal

. See Johnson v. State
, 423 S.W.3d 385 , 390 (T ex. Crim. App. 2014) ; see al so Perez v. State , 424 S.W.3d 81, 87 (Tex. 2014) ( Alcala, J., concurring)

. T he extraordinary remedy of mandamus is not a substitu t e for and cannot be used to perfor m the o ffice of appeal. In re Medina , 475 S.W.3d 291, 305 (Te x. Crim. App. 2015) (orig. pr oceeding)

. This is true even when the appellate remedy is no longer available

. See In re Sims , No. 12

- 15

- 00190

- CV, 2016 WL 437949 0, at *1 (Tex . App.

— Tyle r Aug. 17, 2016, orig

. proceeding) (mem. op .). Even so, i n some instance s , when a remedy at law technically exist s , it may be so uncertain, tedious , burdensome, slow, inconven ient, inappropr iate , or inef fective as to be deemed inad equate

. Medi na , 475 S.W.3d at 297. But this exception does not ap ply her e. A s p reviously state d, Relator already filed her appellate br ie f and the State filed its brief on Sept ember 10

. And this Cou rt has recently addressed th ese types of court cost issu es in other a ppeals

. See McCollister v . State , No. 12

- 20

- 000 48

- CR, 2021 WL 191681 4 (Tex. App.

— Ty ler May 12, 2021, no pet.) (mem. op., not designated for pu blication ) (addressing assessment of “ county special ty court account , ”

“ courthouse security fund , ” a nd “ lo cal con solidated fee ” ) ; see also Frater v. State , No. 12

- 20

- 00113

- CR, 2021 WL 191 6702 (Tex. App.

— Tyler May 12, 2021, no pet. ) (mem. op., not designated for publication) (addressing assessment of “ local consolidated fee ” )

. Moreover , aside from a direct appe al , there are other “ avenue s for an alert defendant who believes that the court c osts imposed ag ainst him are e rroneous or should not b e collected. ” Perez , 424 S.W.3d at 87 ( Alcala, J., concurring)

. 4 F or instance, “ [o] n the filing of a motio n by a

4 Some avenues do not apply here. For example, “ an appellant who is assessed c ourt costs a fter expiration of the peri od of time when he c ould hav e file d a dir ect appeal or a cha llenge under article 103.008 could obtain relief through a petition for mandamus. ” Perez v. S tate , 424 S.W.3d 81, 87 (Tex. 2014) ( Al cala, J., concurring)

. Her e, court costs w ere n ot so t ardily assess ed

. Also , an appellant m ay lawfully choose n ot to pay court costs until a written bill i s “produced” or “ready to be produced.” Id

. at 80 ; see T EX

. C ODE C RIM

. P ROC

. A NN

. art. 103.001 (b) (West 2018 ) ( i n a court other than a j ustice or mun icipal court , a co st is n ot payable by the person charged until a
wr itten bill containing the items of cost is p roduced , signed by the officer who charged the cost or who i s entitled t o8 defenda nt not later t han on e year after the date of the final disposition of a case in w hich costs

were imposed, the c ourt in which the case is pending or was last pending shal l correct any error in the costs. ” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 103.0 08 (a) (West 20 18 ) ; Perez , 424 S.W .3d at 87 ( Al cala, J., concurring)

. Or , when the State seeks to collect money f rom an inmate ’ s t rust account, a defendant may have a civil remedy to challenge the collection of cos ts

. Perez , 424 S. W.3d at 8 9 (ci ting Harrell v. State
, 2 86 S.W.3d 315, 317 (Tex. 2009) )

. Because Relator has an appeal pending and there are additional remedies available to her , we conclu de that Relator has an adeq uate remedy at law with resp ect to court costs. For this
reason, s he is n ot entitled to mandamu s relie f as to this issue. S ee Young , 236 S.W.3d at 210

.

D ISP OSITIO N Because Relator has no t shown herself entitled to mandamus relief, we deny her petition for writ of mandam us. B RIAN H OYLE Justice

Opinion delivered September 15, 202 1. Panel consisted of Worthen, C.J., Hoyle, J., and N eeley, J.

( DO NOT PUBLISH)

receive payment for the cost , and provided to the pers on charged with the cost )

. But a bill of costs h as been filed in this case.9 

## COURT OF APPEALS
TWELFTH COURT OF AP PEALS DISTRICT OF TEXAS
JUDG MENT

SEPTEMBER 15, 2021
NO. 12

- 21

- 00127

- CR

SA RAH PERERO , Relator V.
HON. KER RY L. RUS SELL , Respondent

O RIGINAL P ROCEEDING

ON T HIS DAY came to be hear d the petition fo r writ of mandamus filed by Sarah Perer o ; who is the relator in appellate cause num ber 12

- 21

- 00 127

- CR and the defendant in trial
court cause number 007

- 1435

- 19 , pe nding o n the docket of the 7th Judic ial District Co urt of Smith C ounty , Tex as. Said petiti on for writ of mandamus having been filed herein on August 9, 2021 , and the same havi ng been duly considered, because it is the opi nio n of thi s Court that the writ should not issue , it is theref ore CON SIDERED, ADJUDGED and ORDERED that th e said petition for writ of mandamus be, and the same is, hereby denied

. B rian Hoyle, Justice

. Panel consisted of W orthen, C.J

. , Hoyle, J. and Neeley, J.