Opinion
WR-44 786-06
05-18-2022
EX PARTE RICHARD ANTHONY RIVERS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 0710442-D IN THE 178TH DISTRICT COURT HARRIS COUNTY
McClure, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, Keel, and Walker, JJ., joined. Yeary, J., filed a concurring and dissenting opinion in which Slaughter, J., joined.
OPINION
McClure, J.
Is it legal for the Texas Department of Criminal Justice to decline to release an inmate to mandatory supervision on one sentence until the inmate is eligible for release on all concurrent sentences? Because Applicant is eligible for mandatory supervision release on one of his convictions, we grant relief as to that sentence. However, because Applicant is ineligible for mandatory supervision on his second sentence, he is not entitled to immediate release as to that sentence.
I. BACKGROUND
Applicant is serving two sentences that involve Texas's mandatory supervision statute in both its automatic and discretionary forms. Prior to 1996, all eligible inmates whose good time plus actual time in prison equaled the total length of their sentences were absolutely required to be released on mandatory supervision. See Act of May 23, 1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754, repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.22, 1997 Tex. Gen. Laws 327, 443 (current version at Tex. Gov't Code Ann. §§ 508.147-508.149). The Parole Board had no discretion to deny release to an inmate even if the Board was certain he would pose a clear and present danger to society. See House Comm. Report, Bill Analysis, Tex. H.B. 1433, 74th Leg., R.S. (1995) (amending then Tex. Code Crim. Proc. art. 42.18, § 8(c) and adding subsection (c-1), now codified at Tex. Gov't Code § 508.149) (noting "once eligible inmates reach an average of 48% of their total sentence, the Pardons and Parole Board has no discretion or decision-making power regarding their release").
In 1995, an eligible inmate whose actual calendar time plus accrued good conduct time equaled the term of his sentence was automatically released on mandatory supervision and treated as if he were on parole. Act of May 23, 1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754 (repealed 1997).
The two issues that the Court ordered this application to be filed and set for submission to determine were: (1) "whether the policy of not releasing an inmate to mandatory supervision on one concurrent sentence until the inmate is eligible for release on all concurrent sentences is legal"; and (2) "whether the Court's decisions in Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008)[, ] and Ex parte Williams, 257 S.W.3d 711 (Tex. Crim. App. 2008) are applicable." Ex parte Rivers, No. WR-44, 786-06, 2021 WL 1395895, at *1 (Tex. Crim. App. Apr. 14, 2021) (not designated for publication).
Concerned with this "automatic open-door policy," the Texas Legislature repealed the mandatory supervision statute and enacted a policy that provided for some discretion in the Texas Department of Criminal Justice's (TDCJ) decision to release an inmate to mandatory supervision. Act of May 29, 1995, 74th Leg., R.S., ch. 263, 1995 Tex. Gen. Laws 2592, 2592-93, repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.22, 1997 Tex. Gen. Laws 327, 443 ("H.B. 1433"). Effective September 1, 1996, the revised statute, now found in the Government Code, states, "an inmate may not be released to mandatory supervision if a parole panel determines that: (1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and (2) the inmate's release would endanger the public." Tex. Gov't Code Ann. § 508.149(b).
The amendments also contained a saving clause, applying the change in the law to offenses committed after the effective date of the statutory amendment, while retaining the prior law for offenses committed before the effective date. See H.B. 1433 at §§ 3 and 4; see also Ex parte Mabry, 137 S.W.3d 58, 59-60 (Tex. Crim. App. 2004) (holding that "[t]hese clauses reflect a clear intention by the Legislature to apply the old law to prisoners serving a sentence for an offense committed prior to the September 1, 1996, effective date. Thus, the law prior to those revisions applies to applicant, whose offense was committed in 1990.").
The amendments contained in H.B. 1433, which became effective September 1, 1996, contained the following:
Section 3(a) The change in law made by this Act applies only to a prisoner serving a sentence for an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.Section 3(b) A prisoner serving a sentence for an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.
In 1995, Applicant committed a burglary of a habitation with intent to commit theft. He was convicted of that offense in 1997, and punishment was assessed at confinement for thirty-five years ("1997 conviction"). Applicant was eligible for mandatory supervision (MS) on that sentence and remains so because of the savings clause. See Act of May 23, 1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754 (repealed 1997).
In 2013, while on supervised release for the 1997 conviction, Applicant committed another burglary of a habitation. He was convicted, and punishment was assessed at ten years' confinement ("2013 conviction"). The 2013 conviction was ordered to run concurrently with the 1997 conviction. The 2013 conviction is subject to the 1996 change to the supervised release statute in which release to mandatory supervision is no longer automatic but subject to the discretion of the parole board. See Tex. Gov't Code Ann. §§ 508.0443(a)(1), 508.147(a), 508.149(b).
On January 24, 2020, Applicant was notified that he would be reviewed for discretionary mandatory release (DMS) on the 2013 conviction. In March 2020, the Board of Pardons and Paroles decided to deny release on this sentence. The Board again denied Applicant's release to DMS in February 2021.
In May 2020, Applicant's 1997 conviction became eligible for mandatory supervision. However, the Texas Department of Criminal Justice (TDCJ) notified Applicant that he would not be released until he became eligible for release on all concurrent sentences.
II. ARGUMENTS OF THE PARTIES
Applicant alleges that TDCJ is misinterpreting the phrase "eligible for release" to mean than an inmate must be granted DMS in the 2013 conviction in order to become eligible for release in his 1997 conviction.
The State disagrees and counters that an inmate should not be released to supervision on an eligible sentence, even if entitled to immediate release, if concurrently serving a sentence ineligible for release. The State argues that this is not a denial of release but, instead, a delay until the inmate is no longer prevented from release on the other sentence. The State argues this is legal for two reasons. First, a proper reading of the MS statute shows inmates are entitled to supervised release only on eligible sentences. Otherwise, according to the State, interpreting the statute to mean immediate release, regardless of the inmate's eligibility of release on any other sentences he is currently serving, would lead to absurd consequences that the Legislature did not intend. Second, the State contends that Applicant's interpretation of the statute would violate other statutes, namely, the DMS statute. The State argues that the DMS statute requires sentence credits before release, necessitates the parole board's discretion in approving release, and, in some instances, simply prohibits release. Immediate release, according to the State, would violate this statute.
III. ANALYSIS
i. TDCJ has no discretion to deny release.
As discussed above, prior to the enactment of the discretionary mandatory supervision release statute, TDCJ had no discretion to deny mandatory release to an inmate. The mandatory supervision statute speaks in unequivocal language that an eligible inmate whose actual calendar time plus accrued good conduct time equaled the term of his sentence is automatically released on mandatory supervision. See Act of May 23, 1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754 (repealed 1997). Therefore, in the case of Applicant's 1997 conviction, there is no discretion in releasing him at all. It appears that TDCJ's policy of not "releasing" a prisoner to mandatory supervision on one concurrent sentence until the prisoner is "eligible for release" on all concurrent sentences runs afoul of the mandatory supervision statute.
ii. TDCJ has misinterpreted the amendment to the MS statute.
Applicant alleges that TDCJ is changing the holding offense in situations where an inmate is serving an MS-eligible sentence and a DMS-eligible sentence concurrently.
As discussed above, eligibility for mandatory supervision is determined by the statute in effect when the offender's "holding offense" is committed Ex parte Thompson, 173 S.W.3d 458, 459 (Tex Crim App 2005) A "holding offense" is the offense that governs an offender's release date See Ex parte Mabry, 137 S.W.3d 58, 63 (Tex Crim App 2004) (Keasler, J, concurring).
In Applicant's case, TDCJ originally set Applicant's 1997 conviction as the holding offense for purposes of calculating Applicant's MS release date. However, once that date passed, TDCJ switched Applicant's holding conviction to the 2013 conviction.
The State argues that TDCJ's policy of not releasing inmates to mandatory supervision until they are eligible to be released on all concurrent sentences is the most appropriate option: it delays but does not deny release to those who have essentially interfered with their right to immediate release by their new convictions.
Applicant alleges the holding offense should be static and, in his case, the holding offense should be his 2013 conviction; otherwise, TDCJ is violating the prohibition against ex post facto laws. Applicant alleges the current policy allows TDCJ to "turn Applicant's MS-eligible sentence into what amounts to be a DMS-eligible sentence."
An ex post facto violation occurs when a statute changes the punishment and inflicts greater punishment than the law attached to a criminal offense when committed. Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex. Crim. App. 1994). Generally, "[o]nly the legislature can violate either the federal or state Ex Post Facto Clauses because . . . both are 'directed at the Legislature, not the courts.'" Ex parte Heilman, 456 S.W.3d 159, 163 (Tex. Crim. App. 2015) (quoting Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002)). In assessing such claim, a court must "look beyond the actor that is directly committing the alleged violation for some legislative origin of the alleged violation…" Heilman, 456 S.W.3d at 165. Here, Applicant is not alleging that the statute violates the prohibition against ex post facto laws but that TDCJ's application of the statute violates the ex post facto clause. Since Applicant does not allege the Legislature violated the clause in the enactment of the statute, we decline to extend an ex post facto violation to TDCJ for exercising their policy to release inmates to mandatory supervision.
This argument notwithstanding, is TDCJ's policy of "delaying" release legal? This question was answered, in part, in 2008, when the Court was confronted with how mandatory supervision issues are resolved when a prisoner is serving consecutive sentences. See Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), and Ex parte Williams, 257 S.W.3d 711 (Tex. Crim. App. 2008). In these cases, the applicants were serving sentences for pre-1987 offenses consecutively with sentences for post-1987 offenses. An underlying issue was the same as the present case-TDCJ was not releasing (or delaying release) on a mandatory supervision sentence until the applicant became eligible for release on all the sentences. While these cases concerned consecutive rather than concurrent sentences, this Court, in examining whether an inmate should be on regular mandatory supervision release on one sentence while remaining in prison on another consecutive sentence, noted:
Because we have determined that applicant is eligible for mandatory supervision release on the instant murder sentence, we grant relief as to that conviction. TDCJ is ordered to classify applicant as eligible for mandatory supervision release on this twenty-five-year sentence for his murder conviction. However, TDCJ shall calculate his time for [his consecutive DMS] sentence and the sentences ordered to be served consecutively therewith in accordance with our holdings in Forward.Ex parte Williams, 257 S.W.3d at 712.
This is consistent with what TDCJ is doing in Applicant's case-because Applicant's second sentence is ineligible for MS, TDCJ is delaying MS release on the first sentence until the entire period of the second sentence has passed.
In accordance with Forward and Williams, Applicant's 1997 conviction is the holding offense for Applicant. Applicant became eligible for MS release in his 1997 conviction on May 5, 2020. However, TDCJ is not releasing Applicant to mandatory supervision in his 1997 conviction until Applicant is released to DMS on his concurrent conviction. By denying Applicant release on his mandatory-supervision-eligible holding offense, Applicant has been punished for the 1997 conviction longer than the law at the time permitted.
Therefore, Applicant is entitled to immediate release in his 1997 conviction. This will be a "paper parole"-a designation by TDCJ that Applicant is on mandatory supervision release on one of his convictions-but is not an actual, physical release of Applicant from TDCJ custody. We recognize that this is somewhat of a hollow victory for Applicant considering he will be released on paper on one conviction while still being held in prison on another conviction. See Ex parte Kuester, 21 S.W.3d 264, 272-73 (Tex. Crim. App. 2000) (noting that, when a prisoner with two consecutive sentences makes parole on one sentence, it ceases to operate for stacking purposes; though "the inmate is in custody serving his second sentence, he is 'paroled' on his first sentence, continuing to get credit on it for the time he is in prison.").
We also recognize that a paper release may become a detriment, should an inmate be released on a second sentence, have his supervision revoked, and likely forfeit "street time" from his paper release on the first sentence for time spent in prison. Nonetheless, Applicant's statutory right in release supersedes any potential hypothetical loss in time credit.
IV. CONCLUSION
In Applicant's case, TDCJ is not releasing Applicant to mandatory supervision until he is "eligible for release" on all his sentences. This is an incorrect interpretation of the amendment to the MS statute. TDCJ is ordered to immediately release Applicant to mandatory supervision on this thirty-five-year sentence for burglary of a habitation with intent to commit theft. However, TDCJ shall continue to calculate his time for this sentence and the sentences ordered to be served concurrently therewith in accordance with our holdings in Forward. Copies of this opinion shall be sent to TDCJ's State Classification Committee-Correctional Institutions Division and its Pardons and Parole Division.
Yeary, J., filed a concurring and dissenting opinion in which Slaughter, J., joined.
The Court today addresses the two issues that we ordered this application be filed and set for submission to determine.1 In doing so, it orders the Texas Department of Criminal Justice (TDCJ) to follow this Court's prior holding in Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), ultimately resulting in Applicant's continued custody for his ten-year concurrent sentence, subject to the Board of Pardons and Paroles' (BP&P) review for discretionary mandatory release (DMS). Majority Opinion at 10.
I agree that Applicant's continued confinement on this basis is correct, and I concur in the Court's denial of relief in the form of release from actual custody. But I dissent to the Court's qualified grant of relief-if "paper parole" is any relief at all-in this case. See id. at 9 ("This will be a 'paper parole'-a designation by TDCJ that Applicant is on mandatory supervision release on one of his convictions, but is not an actual, physical release of Applicant from TDCJ custody."). The writ of habeas corpus is an extraordinary remedy that is "to be used when any person is restrained in his liberty." Tex. Code. Crim. Proc. Art. 11.01. The way I see it, inaccurate TDCJ paperwork does not, in and of itself, equate to a restraint of liberty, and "The Great Writ" should not be demeaned to the status of a mere paperwork-fixing procedure.
Having determined that Applicant is not entitled to immediate release from confinement into constructive custody in the form of mandatory supervision, the Court should not go on to grant Applicant relief in the form of (essentially) only "constructive release" when such relief does not go to either the fact or the duration of his restraint. To the extent the Court grants that qualified relief without even addressing questions with regard to cognizability and ripeness, I must dissent.
I. Applicant Should Remain Legally Incarcerated
The Court's disposition today orders TDCJ to immediately release Applicant for mandatory supervision on his thirty-five-year sentence. Majority Opinion at 10. It also orders TDCJ to "continue to calculate [Applicant's] time for this sentence and the sentences ordered to be served concurrently therewith in accordance with our holdings in Forward." Id. The result is that Applicant will continue to remain incarcerated due to his concurrent ten-year sentence, subject to review for so-called discretionary mandatory supervision (DMS), and that the duration of his confinement in the penitentiary will remain wholly unaffected by Applicant's constructive "release" from his first sentence.
I agree that this bottom-line outcome-continued confinement- is the correct one. Applicant's argument-that he must be released from confinement because he has attained mandatory supervision on his 35-year sentence, even though his concurrent 10-year sentence is subject to DMS, and the BP&P has not seen fit to exercise its discretion to release him on that sentence yet-has no merit. Applicant should, and will, remain in custody on his 10-year DMS sentence, subject to TDCJ's discretionary authority. But it seems to me that denying Applicant relief on that basis is all the Court should do.
II. Unresolved Issues Give Me Pause
I cannot agree with the Court's grant of "constructive release" on Applicant's 35-year sentence-at least not without further analyzing several issues that trouble me about granting that kind of relief. Until such time that TDCJ's failure to recognize Applicant's entitlement to at least "constructive release"-from actual custody into constructive custody-on his 35-year sentence should somehow affect the BP&P's ability to properly exercise its discretion to grant him actual release into constructive custody on his 10-year sentence, then he arguably has nothing to complain about.
TDCJ's failure has not yet been shown to affect "the fact or duration of his confinement," and therefore Applicant's claim, at least arguably, presents a claim that is neither cognizable nor ripe for our consideration. See Ex parte Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010) ("Under Article 11.07, a person who files a habeas corpus application for relief from a final felony conviction must challenge either the fact or length of confinement."); Ex parte Alba, 256 S.W.3d 682, 685 (Tex. Crim. App. 2008) (plurality opinion) (citing Ex parte Lockett, 956 S.W.2d 41, 42 (Tex. Crim. App. 1997), for the proposition that a claim for relief in a post-conviction application for writ of habeas corpus, to be cognizable, "must request a change of either the fact or the length of confinement").
The consecutive-sentence habeas cases do not necessarily counsel otherwise. It is true that in Ex parte Williams, 257 S.W.3d 711, 712 (Tex. Crim. App. 2008), the Court rejected an argument that was similar to Applicant's here: that he should be released on mandatory supervision when he became eligible on his first offense even though he was serving a consecutive sentence that was not mandatory-supervision eligible. Though we rejected Williams's argument, we still declared that he was indeed mandatory-supervision eligible on the first offense, "grant[ing] relief as to that conviction." Id. It was important to do so there, in the context of consecutive sentences, because that would determine when the second sentence began to run for purposes of calculating Williams's eventual release date for the combined sentences. See id. ("TDCJ shall calculate his time for this sentence and the sentences ordered to be consecutively therewith in accordance with our holdings in Forward.").
Here, by contrast, the Court is not providing any actual relief to Applicant that is going to impact his release date from incarceration in this concurrent sentence situation. Declaring that Applicant is now "constructively released" from his first sentence will not have any effect on the timing of his ultimate release on DMS for the other sentence he is serving concurrently with it. The Court's action today does not impact how long Applicant will be ultimately be "restrained in his liberty" in the same way that ordering TDCJ to "classify" Williams as "eligible for mandatory supervision release" had a direct impact on determining the timing of his ultimate release from custody. Unlike with Williams's incarceration, "the fact and duration" of Applicant's incarceration is completely unaffected by the Court's grant of "paper parole" today.
I cannot say for certain that this distinction between consecutive sentences and concurrent sentences critically impacts such threshold issues as cognizability and ripeness. But I suspect it does, and I am certainly uncomfortable granting the qualified relief that the Court does today-in post-conviction habeas proceedings-without addressing these issues at all. See Johnson v. Moore, 77 N.E.3d 967, 968 (Ohio 2017) (holding that "any claim for immediate release is unripe" because the maximum term had not yet expired); Kelsey v. State ex rel. McManus, 244 N.W.2d 53, 54 (Minn. 1976) (holding that "habeas corpus was not a proper remedy" for a petitioner claiming the Minnesota Corrections Authority violated his rights when he was refused access to his prison base file prior to a parole hearing, because petitioner was not entitled to immediate release if granted relief).
The Court has otherwise held, albeit in pre-trial settings, that habeas "is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release." Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001), citing to Headrick v. State, 988 S.W.2d 226, 228-29 (Tex. Crim. App. 1999) (citing Ex parte Ruby, 403 S.W.2d 129, 130 (Tex. Crim. App. 1966), Ex parte Matthews, 873 S.W.2d 40, 43 (Tex. Crim. App. 1994)); Ex parte Ruby, 403 S.W.2d 129, 130 (Tex. Crim. App. 1966) (holding, pending appellate review, that "[t]he writ of habeas corpus is not available to secure a judicial determination of any question which, even if determined in the prisoner's favor, could not result in his immediate discharge."). Other jurisdictions have held that the same is true in post-conviction settings. See Kelsey, 244 N.W.2d at 54; People ex rel. Porter v. Napoli, 56 A.D.3d 830, 831 (N.Y. 2008) ("Habeas corpus relief is available only if an inmate can demonstrate that he or she is entitled to immediate release from prison. An inmate is not entitled to immediate release from prison until the expiration of his or her sentence.") (internal citations omitted). Today, the Court uncritically treats the Applicant's concurrent sentence situation as if it were completely controlled by our consecutive sentence jurisprudence, without first exploring key threshold issues that will ultimately determine whether it is at all appropriate to utilize the extraordinary remedy of habeas corpus to grant the kind of "paper relief" it grants here.
III. CONCLUSION
"The Great Writ" has come a long way from its humble beginnings, when post-conviction habeas corpus relief was available only upon an applicant's showing of a jurisdictional defect. Brown v. Davenport, No 20-826, 2022 WL 1177498, at *6-7 (US Apr 21, 2022); see also Ex parte Crispen, 777 S.W.2d 103, 107 (Tex Crim App 1989) (Clinton, J, concurring) (describing the Court's entertainment of the "burgeoning of claims raised in post-conviction writs of habeas corpus" after the United States Supreme Court "abandoned the fiction that habeas reached only jurisdictional defects . . .."). In this case, the Court utilizes it as a vehicle to justify ordering TDCJ merely to fix what it perceives to be faulty paperwork in Applicant's file. Because the writ of habeas corpus is an extraordinary remedy that should not be reduced to trivialities without at least a cursory analysis of issues impacting whether we should grant any relief at all, in this instance, I dissent.