Walker, Ex Parte Jason Scott ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-74,877

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EX PARTE JASON SCOTT WALKER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY

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   Johnson, J., filed a dissenting opinion.

D I S S E N T I N G O P I N I O N  

When the trial court first placed applicant on deferred adjudication on June 16, 2000, it ordered him to participate in the boot-camp program and ordered that applicant be kept in custody in the Harris County jail until space was available. The exact words of the order were "remain in the Harris County Jail." Applicant remained in the jail for 40 days, until he was released to boot camp on July 11, 2000. After the trial court adjudicated applicant, it gave him credit for the time he spent awaiting transfer to boot camp. There seems to be no indication from the trial court nor a complaint from the state that such credit was improperly given because the time spent waiting in the jail was a condition of community supervision.

Applicant was returned to the jail from boot camp on July 26, 2000. On that day, the trial court amended his conditions of community supervision, "apparently to substitute" the Substance Abuse Felony Punishment Facility (SAFPF) for boot camp. The notation on that order was "Release only to SAFPF." Applicant was held in custody in the jail for 119 days, until November 21, 2000, then released to SAFPF.

In both cases, applicant spent an extended period of time in custody before space became available. He has been given credit for one period of waiting, but not the other. One is found not to be a condition of community supervision, while a similar order that had precisely the same effect is found to be a condition and a reason to deny time credit.

I do not see how "remain in jail" until a rehabilitation program becomes available and "release only to" a rehabilitation program are logically or legally different. In both instances, the trial court ordered that applicant remain in custody until there was space in a specified rehabilitation facility. If the jail is to release an inmate only to a rehabilitation program, the inmate will remain in custody until space is available; if the inmate must remain in custody until space is available in a specified rehabilitation program, the jail will release the inmate only to that rehabilitation program when space becomes available. Merely changing the name of the facility does not transform the time spent waiting into a condition of probation. Nor, without a more specific expression by the trial court of its intent in substituting a rehabilitation program, does the use of different words which produce the same result alter the nature of the result. The time credit should be treated equally; either both are a condition of community supervision or neither is.

It appears that the intent of the trial court here was to get applicant into a drug rehabilitation program and that the trial court felt that the best way to do that was to keep applicant where he could be easily found until such a program became available. The use of different words does not, of itself, imply different intent. To treat the two waiting periods differently is to create magic words that must be recited in order to create a specified result. I respectfully dissent.

Johnson, J.

Filed: December 1, 2004

En banc

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