DocketNumber: NO. WR-85,192-01
Citation Numbers: 541 S.W.3d 827
Judges: Hervey, Keasler
Filed Date: 11/22/2017
Status: Precedential
Modified Date: 1/21/2022
Alcala, J., filed a dissenting opinion.
Walker, J., filed a dissenting opinion in which Richardson, J., joined.
Newell, J., dissented.
Keasler, J., filed a concurring opinion, in which Hervey, J., joined.
*832CONCURRING OPINION
I agree with the majority's judgment and I join its opinion. I write separately to suggest a reading of the relevant statute that may, going forward, satisfy both parties' concerns.
Although the majority accurately conveys the facts of this case, I recite them in chronological order to aid the reader's understanding.
1. In May 2013, Johnson was sentenced to 10 years' confinement for forgery ("Sentence 1");
2. In August 2013, Johnson was sentenced to 10 years' confinement for possession of a controlled substance ("Sentence 2"), stacked upon Sentence 1; and
3. In September 2014, Johnson was sentenced to 40 years' confinement for delivery of a controlled substance ("Sentence 3"), concurrent to Sentences 1 and 2.
Because it is stacked upon Sentence 1, Sentence 2 does not "begin"-that is, Johnson does not begin accruing credit on Sentence 2-until either (1) Sentence 1 is served day-for-day, or (2) the parole board votes to grant him parole on Sentence 1.
The problem is that, per Board of Pardons and Paroles ("Board") policy, the Board will not hold a parole vote on any of his sentences until he is statutorily eligible for release on Sentence 3-his longest or "controlling" sentence.
The decision to delay the vote promotes efficiency; it means that the Board need not repeatedly review the same inmate for parole across a range of non-controlling, concurrent sentences. In other words, this policy ... minimizes the burden on the parole system by reducing the need to prepare for and to conduct inefficient and repetitive votes where the benefit of such a vote is highly speculative.3
In essence, the Board seeks to avoid what is sometimes called "paper parole"-a parole determination that would not result in an actual, physical release of the inmate from TDCJ custody. Johnson, meanwhile, retorts that if "his second sentence [had] commence[d]" in January 2014 (when he became statutorily eligible for release on Sentence 1), he would be eligible for actual, physical release in a matter of months, *833rather than years.
Both parties seem to think that the Board's impending parole vote on Sentences 1 and 3 can be only prospective in nature-that is, any vote to grant him parole would determine only the prospective commencement date of Sentence 2. I am not convinced that the Board's impending vote need be so limited.
Government Code Section 508.150, the statute governing "Consecutive Felony Sentences" in parole matters, states that the Board "shall designate during each sentence the date ... the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence."
If this interpretation of Section 508.150 is the correct one, both parties may have their druthers in this case. The Board may wait until December 2017 to conduct a single parole determination on all of Johnson's eligible sentences in one fell swoop. It may also, at that time, designate the date upon which Johnson "would have been eligible for release on parole if [he] had been sentenced to" but one sentence.
Johnson, if he is retroactively granted parole in this manner, will receive all the credit towards Sentence 2 that he currently claims to have been unfairly kept from him. If, on the other hand, he is denied retroactive parole after appropriate review, he will not have been deprived of anything the law currently entitles him to.
Because Section 508.150 requires only that consecutive-sentence parole determinations be made "during each sentence,"
With these thoughts, I join the majority.
Alcala, J., filed a dissenting opinion.
DISSENTING OPINION
Can the parole board disregard applicable statutes without any judicial oversight? After today's majority opinion, the answer to this question is "Yes." Today's holding definitively tells the parole board that it may wholly disregard the Legislature's procedural requirements without any judicial oversight by this Court. I respectfully disagree with this holding. Although I agree that almost all of the parole board's decisions are wholly discretionary and not subject to judicial oversight, in rare cases such as this one involving mandatory statutory procedural requirements, I would grant either habeas or mandamus relief to Morris Landon Johnson II, applicant. I would hold that, when, as here, an inmate is serving two sentences concurrently but he also has a yet-to-commence third sentence that will be served consecutively to the shorter of his concurrent sentences, the parole board must consider him for parole on his shorter concurrent sentence at the point at which he becomes statutorily eligible for parole on that sentence. Here, by delaying a vote on applicant's parole for his first of two stacked sentences until he is eligible for parole on his much longer concurrent sentence, the parole board's policy deprives him of the opportunity to receive parole "on paper" for his first stacked sentence, which, if granted, would allow him to commence serving his second stacked sentence sooner. This policy by the parole board is arbitrary and presents a real possibility that applicant will be confined in prison longer than he otherwise would have been had he been timely considered for parole on the first stacked sentence. Under these circumstances, I agree with applicant's contention that he is entitled to relief, either through a post-conviction writ of habeas corpus or, alternatively, through the vehicle of mandamus. I, therefore, respectfully dissent. I explain my reasoning by reviewing the factual and procedural background, the applicable statutory requirements for parole eligibility, the merits of applicant's request for habeas relief, and alternatively, the merits of relief through mandamus.
I. Background
Here, applicant has three sentences for which he is confined in prison. Although he has become eligible for parole on one of those sentences, the parole board has not considered him for that parole, even though he has been eligible for that consideration for almost four years.
1. On May 16, 2013, applicant was sentenced to ten years in prison for forgery. He became statutorily eligible for parole on this sentence on January 5, 2014.
2. On August 13, 2013, applicant was sentenced to ten years in prison for possession of a controlled substance. The trial court ordered this sentence to run consecutively to the forgery sentence. Applicant has yet to commence serving this sentence. This sentence will *835commence either when applicant reaches calendar-time on the forgery sentence, or when he is granted parole on the forgery sentence, whichever comes first. See TEX. GOV'T CODE § 508.150(b).
3. On September 17, 2014, applicant was sentenced to forty years in prison for delivery of a controlled substance. The trial court ordered this sentence to run concurrently with the other two sentences. Applicant becomes statutorily eligible for parole on this sentence on December 6, 2017.
Applicant alleges that, although he has been eligible to be considered for parole on his forgery offense for four years, the parole board has declined to consider him for parole during that time. The Texas Department of Criminal Justice (TDCJ) has filed a response explaining that, under circumstances in which an inmate is serving more than one concurrent sentence, it is the parole board's policy to delay consideration of an inmate's parole on an otherwise eligible offense until he also becomes eligible for parole on his "controlling" offense, which is the offense with the longest sentence.
II. Statutes Require Each Sentence to Have Its Own Parole Eligibility Date
I agree with applicant's contentions that the parole board's refusal to timely consider him for parole on his forgery sentence runs afoul of mandatory provisions in the Government Code that require timely parole consideration under these circumstances, and that the board's refusal to timely consider him for parole on the forgery conviction unfairly deprives him of the opportunity to begin serving his consecutive sentence for drug possession. See TEX. GOV'T CODE §§ 508.145(f), 508.150(a), (b). A review of the relevant provisions in the Government Code shows that each conviction must have its own parole eligibility date and be treated separately for purposes of determining parole.
The Government Code generally provides that an inmate is "eligible for release on parole" when the inmate's actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less. See TEX. GOV'T CODE § 508.145(f). The plain language of this provision requires that parole eligibility will be calculated with respect to each sentence that has been imposed against a defendant. Consistent with the statutory language of this provision, the Board has enacted a policy that provides that "[a]n offender will be considered for parole when eligible," so long as he does not fall within certain categories of disciplinary misconduct. 37 TEX. ADMIN. CODE § 145.3(4). Under these terms in the statutory language and the board's policy, the board must determine a parole eligibility date as to each sentence and then consider an offender for parole when he is eligible for parole under that date. Nothing in these provisions permits the parole board to delay a vote on an otherwise eligible sentence, as here with respect to applicant's forgery sentence, under the rationale that an inmate is also serving another longer sentence for which he is not yet eligible for parole.
More specifically, when a trial court has ordered that sentences must be cumulated, the Government Code requires the parole board to calculate a parole-eligibility date for each sentence and to consider the inmate for parole on each sentence. See TEX. GOV'T CODE § 508.150(a), (b). Section 508.150(a) states, "If an inmate is sentenced to consecutive felony sentences ...
*836a parole panel shall designate during each sentence the date, if any, the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence."
The Legislature's statutory scheme addressing parole consideration for consecutive sentences clearly provides for separate and timely consideration of an inmate's parole eligibility as to each sentence in a series of stacked sentences and permits an inmate to be paroled "on paper" for his first stacked sentence so that he may begin serving the second stacked sentence. Nothing within any of these provisions suggests that the parole board has the discretion to significantly delay consideration of an inmate's parole eligibility on a stacked sentence until he also becomes parole-eligible on a much longer concurrent sentence, which is the situation here. In light of these statutory provisions, I agree with applicant's contention that the parole board was required to consider him for parole on his forgery sentence when he became eligible for it and that the almost four-year delay in that consideration violates statutory requirements.
I disagree with the response by TDCJ indicating that it is always proper for the parole board to consider an inmate for parole only after he becomes parole-eligible on his longest, or "controlling" sentence. TDCJ has explained that this policy applies even to inmates, such as applicant, who have an additional stacked sentence that cannot commence until the shorter of the active concurrent sentences has ceased to operate. As explained above, this policy fails to conform to the Legislature's statutory requirements that require a parole eligibility date as to each sentence and conflicts with the parole board's own requirements for timely parole consideration for each sentence. It also fails to conform to the statutory provisions that contemplate timely consideration of parole for each sentence in a series of stacked sentences and the possibility of an inmate receiving parole "on paper" as to his first stacked sentence so that he may commence serving his second stacked sentence sooner.
All of the relevant statutory provisions described above indicate that an inmate serving stacked sentences should be timely considered for parole as to each sentence upon becoming eligible. I, therefore, conclude that the parole board has no discretion to disregard these statutory provisions requiring consideration of an inmate's parole when he become eligible for parole on each sentence.
III. State Habeas Relief is Appropriate To Remedy the Statutory Violation
Despite the parole board's clear violation of mandatory requirements that compel timely parole consideration under these circumstances, this Court's majority opinion denies habeas relief on the basis that applicant's claim is not cognizable. As the basis for its conclusion, this Court's majority *837opinion reasons that applicant's claim does not implicate any constitutional right because he has no protected liberty interest in parole attainment, and it further reasons that his claim does not implicate any "fundamental right" because the right to be considered for parole is not a systemic requirement under the framework set forth in Marin v. State ,
In this Court's unanimous 2016 decision in Ex parte Sepeda , this Court determined that a violation of a Government Code provision relating to an inmate's consideration for parole was appropriate for state-habeas relief, even though it did not involve a constitutionally protected liberty interest.
Today, this Court's majority opinion overrules Sepeda by reasoning that complaints pertaining to the parole board's violations of the Government Code do not implicate constitutional rights or absolute rights or prohibitions, which it suggests would be required for the claim to be cognizable on habeas.
This Court's majority opinion explains that Sepeda is inconsistent with our decision *839in Ex parte Douthit , which is true, but only because Douthit was a flip-flop on the same issue from previous precedent. See Douthit ,
[W]e should not overturn precedent lightly. But "[w]hen older precedent conflicts with a new decision that is found to be more soundly reasoned, we may resolve the inconsistency in favor of the more soundly reasoned decision." As we explained in Paulson v. State [,28 S.W.3d 570 (Tex. Crim. App. 2000) ], the goals of the doctrine of stare decisis include "promot[ing] judicial efficiency and consistency, encourag[ing] reliance on judicial decisions, and contribut[ing] to the integrity of the judicial process." And if a prior decision "was poorly reasoned or has become unworkable, we do not achieve these goals by continuing to follow it."
Id. at 74 (citations omitted). The precise question involved in the instant case has plagued this Court's decisions for decades and, depending on the year, these types of statutory violations are cognizable on habeas, then they are not, then they are, then, apparently after today, they are not.
History should tell this Court that this hard-line approach that no statutory violation is ever cognizable on state habeas is unworkable and that this approach has never withstood the test of time. This hard-line approach is untenable particularly when, as here, a defendant is left without any opportunity to litigate or remedy his valid complaint about the violation of mandatory statutory provisions. A defendant who has a valid complaint that the parole board will not even consider him for parole on a case for which he is parole eligible may have to serve additional time in prison merely because this Court will not act on his claim that the parole board has violated mandatory statutory requirements. This continued disregard of applicable mandatory statutory provisions by the parole board is precisely why this Court created this limited right of review in Sepeda , and why that case was correctly decided by a unanimous decision of this Court. I, therefore, would not overturn the precedent in Sepeda that permits consideration of complaints about violations of statutory-based non-discretionary acts by the parole board under limited circumstances in which the board's violation could lengthen an inmate's term of confinement and the inmate has no other trial or appellate remedy. I would hold that this is one of those rare cases in which the statutory right at issue is cognizable on state habeas and I would grant relief to applicant.
IV. Alternatively, Mandamus Relief is Appropriate
Even assuming that this Court's majority opinion correctly concludes that applicant's claim is not cognizable in a post-conviction habeas proceeding, I respectfully disagree with its assessment that his claim cannot be considered through the vehicle of mandamus due to the lack of a clear right to relief. In other situations, this Court has treated matters that would not otherwise be cognizable on habeas as *840presenting a viable basis for mandamus relief. See, e.g., In re Daniel ,
V. Conclusion
The pertinent statutes and regulations do not permit the parole board to calculate a single parole eligibility date for multiple offenses, nor do they permit the board to delay a parole vote on an eligible offense until an inmate is also parole eligible on a much longer concurrent sentence. By refusing to consider applicant for parole based on his eligibility date for his ten-year forgery sentence, and by instead delaying a parole vote for that offense until he is eligible for parole on his forty-year sentence, the parole board has deprived applicant of the possibility of beginning to serve his cumulated ten-year sentence for drug possession. This is an arbitrary deprivation of applicant's statutory right to be considered for parole on each offense after a specified period, and it may result in him being imprisoned for longer than other similarly situated inmates serving single sentences under materially identical circumstances. Given these circumstances, I cannot agree with the Court's conclusion that applicant is entitled to neither habeas nor mandamus relief. I, therefore, respectfully dissent.
Walker, J., filed a dissenting opinion in which Richardson, J., joined.
DISSENTING OPINION
The Court today holds that mandamus relief is not warranted for Applicant, Morris Landon Johnson, II, who is seeking relief from a parole policy of holding a parole vote on all of an inmate's concurrent sentences only when the inmate's controlling sentence is eligible for parole. In my view, the parole authorities are failing to perform a ministerial duty imposed by one of the Board of Pardons and Paroles's own valid regulations, the policy is improper, and Applicant should be granted mandamus relief. Because the Court does not grant relief, I respectfully dissent.
I-Mandamus Jurisdiction
Before I address whether this Court should grant mandamus relief in this case, *841I first address whether the Court has the jurisdiction to do so. The Texas Constitution and the Code of Criminal Procedure provide that we have the power, in criminal law matters, to issue writs of mandamus. Tex. Const. art. V, § 5 (c); Tex. Code Crim. Proc. Ann. art. 4.04, § 1 (West 2015 & Supp. 2016). However, Government Code section 22.002(c) provides that the Texas Supreme Court has exclusive mandamus jurisdiction over executive officers of the state.
Although the parole authorities in this case are within the executive department of the state, the Texas Supreme Court has construed section 22.002(c) to grant it exclusive mandamus jurisdiction against specifically identified constitutional executive officers, namely, the Lieutenant Governor, the Secretary of State, the Comptroller of Public Accounts, the Treasurer, the Commissioner of the General Land Office, and the Attorney General. A & T Consultants, Inc. v. Sharp ,
Thus, the Texas Supreme Court does not have original mandamus jurisdiction against other state officials like court reporters,
II-Is Mandamus Available?
To obtain mandamus relief, a relator must establish that no other adequate remedy at law is available and that the act he seeks to compel is ministerial, rather than discretionary, in nature. Dickens v. Court of Appeals for the Second Supreme Judicial Dist. of Tex. ,
II-A-No Adequate Remedy
What remedy is available to Applicant to compel the Board to consider him for parole? The decision to delay parole consideration on the forgery sentence until the controlling delivery of a controlled substance sentence is eligible is not a judicial judgment or order from which Applicant can appeal. The Board's regulations do not contain any provision by which an eligible inmate can initiate parole consideration. However, the regulations do provide for a type of "appeal." Under Rule 145.17, an inmate has the ability to request a "special review" of a parole panel's decision to deny parole or mandatory supervision.
II-B-Ministerial Duty
The next requirement for mandamus is that the act Applicant seeks to compel is ministerial, rather than discretionary. An act is ministerial if the actor has a duty clearly fixed and required by law to do the act, and the law does not authorize the exercise of discretion or judgment in determining whether the act is to be performed.
*843Smith v. Flack ,
Applicant points us to sections 508.145(f), 508.150(b)(2), and 508.150(a) of the Government Code and
Does the regulation at issue impose a duty clearly fixed and required by law, without any contrary authorization for the exercise of discretion or judgment? Rule 145.3(4) provides:
An offender will be considered for parole when eligible and when the offender meets the following criteria with regard to behavior during incarceration.
(A) Other than on initial parole eligibility, the person must not have had a major disciplinary misconduct report in the six-month period prior to the date he is reviewed for parole; which has resulted in loss of good conduct time or reduction to a classification status below that assigned during that person's initial entry into TDCJ-CID.
(B) Other than on initial parole eligibility, at the time he is reviewed for parole the person must be classified in the same or higher time earning classification assigned during that person's initial entry into TDCJ-CID.
(C) If any offender who has received an affirmative vote to parole and following the vote, notification is received that the offender has been reduced below initial classification status or has lost good conduct time, the parole decision will be reviewed and revoted by the parole panel that rendered the decision.
(D) A person who has been revoked and returned to custody for a violation of the conditions of release to parole or mandatory supervision will be considered for release to parole or mandatory supervision when eligible.
(E) An offender who is otherwise eligible for parole and who has charges pending alleging a felony offense committed while in TDCJ, and for which a complaint has been filed with a magistrate of the State of Texas, any facility under its supervision, or a facility under contract with TDCJ will not be considered for release to parole.
(F) An offender who is otherwise eligible for release and meets the criteria for Medically Recommended Intensive Supervision (MRIS) as required by Texas Government Code, Section 508.146, may be considered for release on parole.
*844
III-"When Eligible"
The majority finds that mandamus relief is not warranted by construing "when eligible" to mean that an offender is eligible for parole only when he has reached the parole eligibility date on the longest concurrent sentence. The majority supports this conclusion by finding that the policy is actually an administrative construction not made in anticipation of litigation, which is entitled to deference. I agree that the construction was not made in anticipation of litigation. The paper trail for the policy begins and ends in the very documents created for the litigation before the Court today-the affidavits submitted by TDCJ and the brief TDCJ filed with this Court. Clearly, they were not made in anticipation of litigation, but as a part of and in response to litigation. In my view, if the policy is an administrative interpretation of Rule 145.3(4), it is a convenient litigating position or a post hoc rationalization advanced by TDCJ, seeking to defend its past action against attack. See Christopher v. SmithKline Beecham Corp. ,
Additionally, the majority's construction adds words to the rule which simply do not exist in a plain reading. Rule 145.3(4) says that "an offender will be considered for parole when eligible," not that "an offender will be considered for parole when eligible on the longest concurrent sentence." This construction would also lead to an absurd result, because it has the potential to violate section 508.150(a). That provision states:
If an inmate is sentenced to consecutive felony sentences under Article 42.08, Code of Criminal Procedure, a parole panel shall designate during each sentence the date, if any, the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.
To me, there are only two possible readings of the plain meaning of the rule. One way to read it is that "when eligible" means when eligible for actual, physical release to parole. This construction, on first sight, seems compelling. However, it falls apart when an inmate is serving consecutive sentences. Such an inmate would not be eligible for actual, physical release on parole until he is eligible on the last sentence in the stack of consecutive sentences.
The only other way to interpret the rule, consistent with the plain meaning of the words used-and the way that makes sense to me-is to read "when eligible" to mean when eligible for parole on each sentence. This reading satisfies section 508.150(a) because the parole panel would review each consecutive sentence for parole during each consecutive sentence, regardless of the length of any concurrent sentences.
*846IV-Conclusion
According to the affidavits submitted by TDCJ in this case, Applicant is eligible for parole on his forgery sentence and has been since January 5, 2014. Consequently, by the language of the regulation, Applicant should have been considered for parole at that time, and his parole review on his forgery sentence is long overdue. The regulation requiring consideration for parole when an inmate is eligible for parole has not been complied with, and, accordingly, the policy cited to support such delay is improper. Therefore, because Applicant lacks an adequate remedy at law by which he can compel his parole review, and because there is a ministerial duty imposed by regulation to consider an inmate for parole when that inmate is eligible, mandamus relief is warranted in this case. Because a majority of this Court holds otherwise, I dissent.
Tex. Code Crim. Proc. art. 42.08 ; Tex. Gov't Code § 508.150 ; Ex parte Kuester ,
Brief for the Texas Department of Criminal Justice at 1-3; cf. Ex parte Mabry ,
Brief for the Texas Department of Criminal Justice at 4-5.
Brief for Morris Landon Johnson II at 7.
Tex. Gov't Code § 508.150(a).
See
See Ex parte Retzlaff ,
Brief for Morris Landon Johnson II at 4.
See Tex. Gov't Code § 508.150.
Majority Opinion at 830-31.
Even as recent as a few weeks ago, this Court has relied on Sepeda in a unanimous per curiam order remanding a case to the habeas court for findings related to the parole board's stated reasons for refusing to parole an inmate. See Ex parte Skinner , No. WR-26,955-06,
This Court has held on multiple occasions that some statutory challenges are cognizable on habeas. See, e.g., Ex parte Thompson ,
This Court has held on multiple occasions that some statutory challenges are not cognizable, but in almost all of those cases the defendant was complaining about a matter on which he could have obtained relief in his direct appeal if he had asserted the challenge, which is different from the instant case in which the defendant is left without any remedy if habeas or mandamus relief is denied. See , e.g. , Ex parte Banks ,
See Ex parte Douthit ,
Wolters v. Wright ,
Pat Walker & Co., Inc. v. Johnson ,
Givens v. Woodward ,
But see Tex. Emp't Comm'n v. Norris ,
In re Nolo Press/Folk Law, Inc. ,
Tex. Const. art. V, § 3 (a);
McFall v. State Bd. of Ed. ,
Betts v. Johnson ,
Glenn v. Indus. Accident Bd. ,
Last year, in Ex parte Sepeda , we held that habeas corpus was the proper remedy by which to compel the parole board to provide a parole-denial letter in compliance with Government Code section 508.1411. See Ex parte Sepeda ,