Walker, Ex Parte Jason Scott ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. AP-74,877

---

EX PARTE JASON SCOTT WALKER, Applicant

---

ON APPLICATION FOR WRIT OF HABEAS CORPUS FROM HARRIS COUNTY

---

  Holcomb, J., filed a dissenting opinion which was joined by Price, J.



OPINION

The question presented in this case is whether applicant, an inmate in state prison, is statutorily entitled to time credit, toward his sentence, for 119 days he spent in the Harris County Jail awaiting a space in a Substance Abuse Felony Punishment Facility (SAFPF). The majority holds that applicant is not statutorily entitled to time credit. I disagree.

The record reflects the following relevant facts: On April 17, 2000, applicant pled guilty in state district court to a charge of aggravated robbery. On June 16, 2000, the trial court heard evidence and found that that evidence substantiated applicant's guilt. The trial court deferred an actual finding of guilt, however, and placed applicant on community supervision for seven years. The trial court's written conditions of applicant's community supervision included one condition, condition number fifteeen, that read as follows:

You are committed to the HCCS&CD Boot Camp beginning JUNE 16, 2000 OR WHEN SPACE IS AVAILABLE. Remain in this facility under custodial supervision and comply with all program rules, regulations, contracts and guidelines of the facility until successfully discharged or released by further order of the Court. Remain in the Harris County Jail until space is available in Boot Camp. Report to COURT FOR REVIEW if you are found to be medically or psychologically unfit for participation.

(All underlining, bolding, etc., in original.) At the bottom of each page of the written conditions of community supervision was the phrase, "RELEASE ONLY TO BOOT CAMP."

On July 11, 2000, applicant was released from the Harris County Jail and entered the "boot camp." On July 25, 2000, the trial court amended its written conditions of applicant's community supervision, deleted condition number fifteen quoted above, and substituted the following condition therefor:

Participate in the Substance Abuse Felony Punishment Facility (SAFPF) beginning JULY 25, 2000 OR WHEN SPACE IS AVAILABLE. You are to remain in the Substance Abuse and Felony Punishment Facility (SAFPF) established in Section 493.009, Government Code, and operated by the Community Justice Assistance Division of the Texas Department of Criminal Justice for a term of not less than six (6) months or more than one (1) year, beginning JULY 25, 2000 OR WHEN SPACE IS AVAILABLE. The defendant shall comply with all rules, regulations, and treatment programs and upon release, the defendant is required to participate in a drug or alcohol abuse continuum of care treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse (TCADA), abiding by all rules and regulations of said treatment plan until discharged by the Court.

(All underlining, bolding, etc., in original.) Unlike the written condition of community supervision that it replaced, the substituted condition said nothing about applicant remaining in the Harris County Jail until a space opened up in the SAFPF. At the bottom of each page of the amended written conditions of community supervision, though, was the phrase, "RELEASE ONLY TO SAFPF."

On July 26, 2000, applicant was released from the boot camp and returned to the Harris County Jail. On November 21, 2000, he was released from the Harris County Jail and entered the SAFPF. On August 23, 2001, he was released from the SAFPF. On January 25, 2002, the State filed a motion to revoke applicant's community supervision and to adjudicate his guilt. On February 15, 2002, the trial court revoked applicant's community supervision, adjudicated his guilt, and assessed his punishment at imprisonment for five years.

On May 6, 2002, applicant filed a "Time Credit Dispute Resolution Form" with the relevant prison authorities, seeking time credit toward his sentence for the 119 days he had spent in the Harris County Jail awaiting a space in the SAFPF. On August 30, 2002, the prison authorities responded that he was not entitled to time credit for the time period in question. On May 12, 2003, applicant filed an application for habeas corpus relief in the trial court.

Article 42.03, § 2(a), of the Texas Code of Criminal Procedure states:

In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

In my view, the plain language of this statute requires that applicant be given time credit for the 119 days in question, because the actual amended written conditions of his community supervision did not state that he was to remain in the Harris County Jail until a space opened up in the SAFPF. The amended conditions could have so stated, as the original conditions had stated that applicant was to remain in the jail until a space opened up in the boot camp, but they did not. Remaining in the Harris County Jail until a space opened up in the SAFPF was not a stated written condition of applicant's community supervision.

Because the majority refuses to grant the requested relief, I respectfully dissent.

FILED DECEMBER 1, 2004.

PUBLISH