Pruett v. State of Texas

• Decision Date: 16 August 1972
• Docket Number: No. 71-3284.,71-3284.
• Citation: 468 F.2d 51
• Parties: Johnnie PRUETT, Petitioner-Appellee, v. The STATE OF TEXAS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

468 F.2d 51 (1972)

Johnnie PRUETT, Petitioner-Appellee, v. The STATE OF TEXAS, Respondent-Appellant.

No. 71-3284.

United States Court of Appeals, Fifth Circuit.

June 12, 1972.

Rehearing Granted August 16, 1972.

Crawford Martin, Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Jim Vollers, State's Atty., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

David L. Tisinger, Austin, Tex., for petitioner-appellee.

Before DYER, Circuit Judge, SKELTON, Judge,^* and INGRAHAM, Circuit Judge.

Rehearing En Banc Granted August 16, 1972.

SKELTON, Judge:

In this case, the State of Texas has appealed from an order of the United States District Court for the Western District of Texas, the Honorable D. W. Suttle presiding, granting the petition for a writ of habeas corpus of Johnnie Pruett, appellee herein.

The facts show that Pruett, a young man 18 years of age, was convicted of sodomy on July 25, 1969, in the 52nd District Court of Coryell County, Texas, and sentenced to two years confinement in the Texas Department of Corrections (penitentiary). He appealed his sentence to the Court of Criminal Appeals, the highest court in Texas in criminal matters. In the meantime, he was unable to make bond and was required to remain in jail during the 19 months it required to process his appeal. The conviction was affirmed in Pruett v. State, 463 S.W.2d 191 (Tex.Crim.App.1970), and the mandate was issued on March 3, 1971. Pruett appealed the case to the United States Supreme Court, but the appeal was dismissed, 402 U.S. 902, 91 S.Ct. 1379, 28 L.Ed.2d 643 (1971).

On March 8, 1971, Pruett filed a motion with Judge J. F. Clawson, Judge of the 169th District Court of Bell County, Texas, sitting by assignment in the 52nd District Court of Coryell County, asking to be resentenced in accordance with Articles 42.03 and 42.09 of the Texas Code of Criminal Procedure, and seeking credit upon his sentence for the time spent in jail pending the appeal of his case, together with "good time" for good behavior while in jail, all as authorized by Articles 6184l and 5118a Revised Criminal Statutes of Texas. At that time, he had been in jail 22 months. In his motion and brief in support thereof, Pruett relied on the above statutes and on the cases of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Robinson v. Beto, 5 Cir. 1970, 426 F.2d 797; Ex parte Griffith, 457 S.W.2d 60 (Tex.Crim.App.1970); Bennett v. State, 450 S.W.2d 652 (Tex.Cr. App.1970); Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305 (1939); State v. McLellan, 87 Tenn. 52, 9 S.W. 233 (1888); and the 14th Amendment to the United States Constitution.

In passing upon Pruett's motion, Judge Clawson considered the above authorities and concluded that since Article 6184l allows a minimum of 1/3 credit for good time to prisoners in the penitentiary and Article 5118a allows 1/3 credit for good time to inmates of the county jail, Pruett was entitled to the same good time for the time he spent in jail pending his appeal. Judge Clawson concluded that to deny Pruett such good time would be to deny him his constitutional rights to equal protection of the laws under the 14th Amendment to the United States Constitution and would be contrary to the decision of the Supreme Court in the Pearce case, which held that jail time must be credited to a prisoner "including good time."¹ Accordingly, Judge Clawson resentenced Pruett, subtracting 19 months and 14 days from his sentence for time spent in jail pending appeal, and, in addition, allowed him credit for good time equal to 1/3 of the days actually served in jail in the amount of six months and 24 days. The total of these credits amounted to more than Pruett's sentence of 24 months, and the court considered his sentence as having been fully served and ordered his release from custody.

Thereafter, the State of Texas, acting through the District Attorney of Coryell County, filed a petition seeking a writ of prohibition with the Court of Criminal Appeals of Texas against Judge Clawson to compel him to enforce the mandate of such court. The court considered the petition as being one for a writ of mandamus. Notice was issued to Judge Clawson to appear and show cause why the writ should not issue. He appeared in person and by attorney, who filed a brief and presented oral argument, in both of which the above authorities were discussed and Pruett's constitutional rights under the 14th Amendment to the Constitution with respect to equal protection of the laws and due process were fully presented.

Pruett was not made a party to these proceedings and was not served with any notice thereof. Nevertheless, he learned about them and filed the following pleadings with the Court of Criminal Appeals:

1. Motion to Intervene.

2. Motion for Postponement.

3. Motion to Dismiss.

4. Alternative Plea for Relief.

5. Application for Stay.

The Court of Criminal Appeals overruled all of such motions and allowed Pruett's attorney to appear only as amicus curiae and speak for ten minutes.

In Pruett's motion to dismiss and application for stay, the above authorities were discussed and the fact that he was being denied his constitutional rights under the 14th Amendment to the Constitution with respect to his civil rights and equal protection of the laws and that he was being subjected to double jeopardy were fully presented to the court. In his alternative plea for relief, Pruett asked the court itself to enter an order discharging him in accordance with his constitutional rights aforesaid if it concluded that Judge Clawson did not have the authority to enter such an order. The court declined to do so, and proceeded to hand down an opinion, State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Crim.App.1971) that Judge Clawson was without authority to give Pruett credit for good time and that his order in that respect was void. It ordered Pruett arrested to serve the remaining portion of his sentence in the penitentiary.

In its decision, the Court of Criminal Appeals decided the case solely on its interpretation of Article 5118a by saying that such article only applies to misdemeanor cases and does not authorize good time for felons in jail pending appeal of their cases. With due respect to that learned court, we feel compelled to say that such an approach appears to be wide of the mark. Judge Clawson did not allow Pruett good time solely on the basis of Article 5118a, but on the broad basis of the total statutory scheme of Texas with reference to good time as encompassed by both Article 5118a and Article 6184l, and as required by North Carolina v. Pearce, supra, and Robinson v. Beto, supra, and the 14th Amendment to the Constitution with respect to due process and equal protection of the laws.

When the Court of Criminal Appeals handed down its decision, Judge Clawson, as he was required to do, entered an order revoking his prior decision allowing good time to Pruett and ordering his arrest to serve the remainder of his time. Whereupon, Pruett filed an application for a writ of habeas corpus with the U.S. District Court. Judge Suttle of that court set the case for hearing and after considering the evidence and the law, handed down a decision on the above authorities upholding the original decision of Judge Clawson that Pruett was entitled to the good time on his sentence. Judge Suttle said:

* * * Thus, because he appealed his conviction, petitioner, under the relevant State statutes as construed by its Courts, was excluded from consideration for good-time credit otherwise afforded both misdemeanor and felony prisoners who do not appeal. Such a result is constitutionally impermissible.

The Court of Criminal Appeals correctly held that petitioner was entitled to credit toward his final sentence for time spent in custody pending appeal. See Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970). But to fully insure that the State\'s appellate avenues are free from unreasonable distinctions that impede open and equal access to the Courts, this credit must be complete and full. North Carolina v. Pearce, 395 U.S. 711, 719 n. 13 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969); * * *. The result of the instant statutory scheme, which denies petitioner consideration for good-time credit available to other prisoners because he appealed his conviction, creates both an unjustified classification and unreasonable impediment to appellate review of criminal convictions, and hence violates petitioner\'s rights under the 14th Amendment to the United States Constitution.

Petitioner must therefore be considered for good-time credit as would other State prisoners. Since both of the pertinent statutes provide for 1/3 credit for time served, a choice between them for computation need not be made. * * * Furthermore, since the conduct record required under both statutes has not been kept and there is no evidence of any "sustained charge of misconduct," ibid, petitioner must be credited with the time found due him by the convicting Court. See Gilliam v. State, 174 Tenn. 388, 126 S.W.2d 305, 307 (1939).

The Petition for Writ of Habeas Corpus is therefore, in all things, GRANTED, and Respondents shall release petitioner from further custody in relation to the instant sentence, and IT IS SO ORDERED.

See Appellant\'s Brief, Appendix A at 1a-3a

The State of Texas has appealed the decision of Judge Suttle only with respect to the good time credited to Pruett, on two grounds:

(1) That Pruett has not exhausted his state remedies; and

(2) The U. S. District Court has overruled the interpretation of a state statute by the highest court of the state.

As to the first ground, we have concluded that Pruett did in fact exhaust his state remedies. He presented the exact questions now before this court to the Court of Criminal Appeals of Texas in plain and unambiguous terms in the various motions...