Ex Parte Mabry , 2004 Tex. Crim. App. LEXIS 937 ( 2004 )

OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

This is an application for a writ of habe-as corpus forwarded to this Court pursuant to the provisions of Tex.Code CRiM. PROC., Article 11.07. In 1990, applicant was convicted of burglary of a habitation and sentenced to ten years imprisonment, probated for ten years. In 1991, applicant’s probation was revoked, and he was sentenced to 10 years confinement in the Texas Department of Criminal Justice— institution division (TDCJ — id, now TDCJ — CID).

Applicant seeks both credit for time spent on parole and a mandatory supervision date. He asserts that, because he was convicted in 1990, he is not covered by the provisions of the current version of Gov’t Code § 508.149, and because of the dictates of the law at the time of his offense, neither is he barred from mandatory supervision by that law. The trial court has made no findings of fact or conclusions of law, nor has the state filed a response.

At the time of applicant’s offense, burglary was a first-degree felony if: the premises were a habitation; or, any party to the offense was armed with explosives or a deadly weapon; or, any party to the offense injured or attempted to injure anyone in effecting entry or while in the building or in immediate flight therefrom. Tex. Penal Code § 30.02(d)(l-3)(1989). The current Penal Code defines a burglary as a first-degree felony if: the premises are a habitation; and, any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.

The Penal Code sections must be read in conjunction with the relevant statutes that govern eligibility for mandatory supervision. At the time of applicant’s offense, that statute was Tex.Code Cmm. PROG, article 42.18, § 8(c), which provided that an inmate who was serving a sentence for a first-degree felony under Tex. Penal Code § 30.02 (burglary) was ineligible for mandatory supervision if the offense was punished (not punishable) under subsections 30.02(d)(2) (armed with explosives or a deadly weapon) or (d)(3) (injury). Mandatory supervision was not barred for burglaries that were deemed first-degree felonies because the premises were a habitation.

After amending Article 42.18 in 1995, the legislature repealed it in 1997 and moved the contents to the Government Code; it also moved the provisions describing inmates who are ineligible for mandatory supervision to Gov’t Code, § 508.149. Session Laws, 75th Legislature, Regular Session, Chapter 165, §§ 12.01, 12.22 and 32.01 (1997). Section 508.149 now bars mandatory supervision for inmates who are serving a sentence for a first-degree felony under Tex. Penal Code § 30.02 (burglary). Gov’t Code, § 508.149(a)(13) (premises are a habitation and intent to commit or committed or attempted to commit a felony other than felony theft).

At the time of applicant’s conviction, all burglaries of a habitation were classified as first-degree felonies, regardless of the underlying offense, but only offenses punished under subsections (d)(2) and (d)(3) were bars to release on mandatory supervision. The writ record includes applicant’s indictment for the 1990 burglary. It alleges that applicant did “enter a habitation with intent to commit theft” and did “enter a habitation and did attempt to commit and committed theft” on or about May 30, 1990. By its terms, the indictment alleges burglary as a first-degree felony because the premises were a habitation and does not allege weapons or injury. Appellant argues that he is neither an inmate described under § 508.149, nor an inmate described under Art. 42.18(c), and is therefore eligible for mandatory supervision.

The amendments contained in Chapter 263 of the Session Laws for the 74th Legislature (1995), which became effective September 1, 1996, contained a saving clause.

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.

Session Laws, 74th Legislature, Regular Session, Chapter 263, §§ 3 and 4 (1995).

These 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.

Under the statutes in place at the time of applicant’s offense, release on mandatory supervision was barred only for those serving sentences for burglary charged as a first-degree felony because of the presence of explosives or a deadly weapon or because of injury during the offense. The indictment under which applicant was convicted alleged burglary as a first-degree felony because the premises were a habitation. Thus, applicant, at the time of his offense, was eligible for mandatory supervision and remains so because of the saving clause of 1995. Even if we apply the current version of the law, applicant remains eligible for mandatory supervision because his burglary conviction was based on intent to commit theft, which is exempted.

Because we hold that applicant is eligible for mandatory supervision, we must now address whether he is entitled to street time for time accrued on his last release on parole. Appellant was granted 145 days credit at the time of his original commitment. He accrued an additional 250 days during his first incarceration on this charge and an additional 752 days after his first parole revocation for a total of 1147 days. Taking 10 years to be equal to 3650 days, at the time of applicant’s release on January 17, 1997, he had a remaining portion of 3650 days — 1147 days, or 2503 days. On September 20, 2001, the date on which the warrant for his second parole revocation issued, he had been on parole for 1707 days, and the time left until his parole would discharge if not revoked was equal to 796 days. He thus had served over half of his remaining portion and is entitled to credit for the time spent on parole.

Accordingly, applicant is entitled to relief. TDCJ- — CID shall treat applicant as an inmate eligible for release to mandatory supervision and, because applicant qualifies for street-time credit, shall credit him with the time he spent on parole during his latest release. Ex Parte Spann, 132 S.W.3d 390 (Tex.Crim.App., 2004). Copies of this opinion shall be sent to TDCJ— CID and the Board of Pardons and Paroles.

KEASLER, J., filed a concurring opinion. KELLER, P.J., filed a concurring and dissenting opinion in which HERVEY, J., joined.