In this habeas corpus proceeding, the state appeals a judgment ordering it to release plaintiff from incarceration. The state contends that the trial court erred in concluding that the Board of Pairóle and Post-Prison Supervision lacked sufficient evidence to determine that plaintiff suffered from a present severe emotional disturbance that rendered him a danger to the health or safety of the community, so as to postpone his parole release date under ORS 144.125(3).

After the case was decided by the trial court and submitted on appeal, we decided Peek v. Thompson, 160 Or App 260, 980 P2d 178 (1999), which holds that the disposition on this issue turns on the extent to which the board’s decision was controlled by OAR 255-060-0006 (1988). Unfortunately, neither the briefing nor the record enables us to determine whether that or a similar rule is applicable.

Reversed and remanded for further proceedings.