Ex parte Rivers
| Decision Date | 18 May 2022 |
| Docket Number | WR-44,786-06 |
| Parties | EX PARTE RICHARD ANTHONY RIVERS, Applicant |
| Court | Texas Court of Criminal Appeals |
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.
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.
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 Laws 3750, 3754, repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.22, 1997 Tex.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).[1] 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) () ( "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").
Concerned with this "automatic open-door policy," the Texas Legislature repealed the mandatory supervision statute and enacted a policy that provided for some discretion in the Texas Department of Criminal Justice's (TDCJ) decision to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 Laws 2592, 2592-93, repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.22, 1997 Tex.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;[2]see also Ex parte Mabry, 137 S.W.3d 58, 59-60 (Tex. Crim. App. 2004) ).
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.
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.
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.
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...
To continue reading
Request your trial