Ex Parte Kuester
Ex Parte Kuester
Opinion of the Court
OPINION
delivered the opinion of the Court,
This case presents a complicated time-credit issue, specifically, how to compute time on a stacked sentence.
I. Facts
Greg Kuester was initially sentenced to a ten-year term in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), for burglary of a building committed in 1988. On September 1,1989, while in the custody of TDCJ-ID, Kuester struck a correctional officer. Kuester was convicted of aggravated assault on July 25, 1991. The trial court sentenced Kuester to a four-year term in prison and ordered that the sentence would not begin to run until Kuester’s ten-year sentence “ceased to operate.”
Upon receipt of the new conviction information, TDCJ-ID recalculated Kuester’s records, adding the new four-year sentence to increase his prison term from ten to fourteen years. Kuester remained in prison, serving his combined sentences, until September 8, 1992, when he was released to parole. He was at liberty until he was arrested pursuant to a parole violator warrant on August 29, 1993. The Board of Pardons and Paroles (the Board) voted to revoke his parole, and he was returned to the custody of TDCJ-ID to continue serving his combined sentences.
In 1997, TDCJ and the Board determined that time calculations for consecutively-sentenced inmates required re-evaluation for offenses committed after 1987.
In accord with revised policies, Kues-ter’s records were reprocessed to reflect confinement under only the initial ten-year sentence and that the four-year sentence had not yet begun. On May 2, 1999, TDCJ-ID and the Board determined that Kuester’s first sentence ceased to operate. At that time, Kuester began serving his aggravated assault case, designated to discharge on April 27, 2003. This date does not appear to give Kuester credit for pretrial jail time, time he served in prison before his initial release to parole, time he
Kuester contends that his release to parole in 1992 was erroneous because TDCJ-ID failed to treat his two sentences separately. He seeks additional credit to his aggravated assault sentence for the period of his erroneous release. We begin by analyzing the applicable statute.
II. Art. 42.08(b) — Completion of the sentence
Article 42.08
A. Language of Stacking Order
Initially, we note that the trial court ordered that Kuester’s aggravated assault sentence begin to run after his ten-year sentence “ceased to operate.” This language appears in Subsection (a). But
Kuester’s aggravated assault conviction was committed while Kuester was an inmate of TDCJ-ID, so the trial judge was required to cumulate the sentence pursuant to Subsection (b) rather than Subsection (a). Nevertheless, regardless of the language in the judgment, the statute dictates the proper application of the order.
B. Plain Language
The starting point for statutory analysis is the text of the relevant provisions.
The text of Subsection (b) has undergone only minor revisions since the date of Kuester’s offense. It currently provides as follows:
If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.7
We construe words and phrases according to the rules of grammar and common usage unless they have acquired, a technical or particular meaning.
Applying “discharge-in-full” as the plain meaning of “completion” results in two potential consequences. One possibility is that an inmate makes parole on his first sentence. He has not discharged his first sentence, so his second sentence cannot yet begin. His second sentence will not begin until his first sentence has discharged, that is, until his parole is complete. The inmate may spend twenty or thirty years on parole, living and working in the community, a rehabilitated and contributing member of society. When at last his parole is complete and his sentence discharges, he must then be returned to prison to begin serving his second sentence. Or, in the case of a particularly long initial sentence, he will remain on parole his entire life, dying before he ever begins serving his second sentence.
We believe construing Art. 42.08(b) in this manner leads to an absurd result that the Legislature could not possibly have intended. The goal of the statute is to punish inmates who commit crimes while in prison.
The other possible construction of Art. 42.08(b), if “completion of the sentence” means “discharge in full,” is that the inmate not be permitted to make parole at all on his first sentence. In effect, by virtue of having received a second, cumu-lated sentence, he is simply designated as no longer eligible for parole. In this situation, he would have to serve his first sentence day-for-day in prison until it discharged, at which point he could begin his second sentence.
This construction is not facially absurd.
Elimination of parole for a person serving stacked sentences also conflicts with Government Code § 508.145,
So interpreting “completion of the sentence” to mean serving the sentence in full, day-for-day, results in two possible consequences, one of which is absurd, and the other of which puts the statute in conflict with other laws. We must conclude the phrase “completion of the sentence” in Art. 42.08(b) is ambiguous.
C. Extratextual Factors
To resolve the ambiguity, we consult extratextual factors.
1. Legislative History
We previously considered the legislative history of Art. 42.08(b) in Basden v. State
2. Consequences of a Particular Construction
We have already considered the consequences of interpreting “completion of sentence” to mean serving the sentence in full, day-for-day. Depending on whether the inmate is permitted to make parole on the first sentence, the consequences of this construction either lead to an absurd result or lead to a conflict with other statutes.
We next consider the consequences of construing “completion of the sentence” to mean something less than discharging the sentence in its entirety. “Completion of the sentence” could mean the point at which the inmate makes parole on the sentence. Under this construction, when the inmate makes parole on the first sentence, he would begin serving his second
3. Laws on Same or Similar Subject
Another aid of statutory construction is to consider laws on the same or similar subjects.
a. “Completion of the Sentence”
The phrase “completion of the sentence” appears in various other statutes. The Texas Code of Military Justice, located in the Government Code, provides that if a person subject to that act is accused of a criminal offense, he must answer to civil authorities.
Also in the Government Code is a statute providing for deportation of illegal aliens incarcerated in Texas prisons. The statute states that the inmates should be deported “on completion of the inmates’ sentences or release of the inmates on parole or mandatory supervision.”
In the Code of Criminal Procedure, Art. 48.05 provides that a person convicted of a federal offense can apply to the Governor for restoration of his civil rights. The statute specifies that the person may not apply until he has “completed the sentence for the federal offense.” There is no definition of “completing the sentence” and no indication of whether making parole constitutes “completing the sentence.” But a common sense interpretation of the statute leads us to believe that the Governor would not restore a person’s civil rights until he has discharged the sentence in full; simply making parole is not enough.
Article 56.11(a)(1) provides for notifying victims of the release or escape of an inmate. The statute states that the victim should be notified when the person convicted of the offense “completes the person’s sentence and is released.”
Although most uses of the phrase “completion of the sentence” in our statutes appear to refer to discharge of the sentence in full, one statute’s use of the phrase seems to include either discharge or parole. So interpreting “completion of the sentence” in Art. 42.08(b) to include release to parole would not be unprecedented.
b. “Cease to Operate”
We next consider the meaning of the phrase “cease to operate” in Art. 42.08(a). As noted previously, subsection (a) refers to the first sentence “ceasing to operate,” while subsection (b) uses the phrase “completion of the sentence.” The use of different language in the two subsections could suggest that different meanings were intended. On the other hand, it may simply have been the result of the Legislature differentiating between cases in which a trial court must, as opposed to may, order a cumulative sentence. In any event, defining “cease to operate” may assist us in defining “completion of the sentence.”
The phrase “cease to operate” is specifically defined in the provisions governing the applicability of parole to consecutive sentences. The current definition is essentially the same as it was at the time of Kuester’s offense:
(2) For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and sentence of a prisoner sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate:
(A) when the actual calendar time served by the inmate equals the sentence imposed by the court; or
(B) on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.28
The meaning of subsection (A) is clear enough: when the inmate has served the first sentence in full, day-for-day, he can begin serving his second sentence. The text of subsection (B) is less clear. What constitutes “the date a parole panel designates as the date on which the prisoner would have been eligible for release on parole”? Is this the date that the person becomes statutorily eligible for parole? Or is it the date, after becoming statutorily eligible, that the prisoner would have actually been released to parole upon approval of the Board?
The Board has the duty to determine when an offender may be released from prison to parole supervision.
4. Placement and Language of Art. 42.08
We next consider the placement of Art. 42.08 in the Code of Criminal Procedure.
D. Meaning of “Completion of Sentence”
Considering the consequences of varying constructions, the legislative history, the meaning of “completion of the sentence” in other statutes, the meaning of “cease to operate” in Art. 42.08(a), the language of Art. 42.08(b), and its placement in the Code, we conclude that the phrase “completion of the sentence” means serving the sentence in full, day-for-day, until discharge, or receiving a vote of approval for parole by a parole panel. Granted, this results in “completion of the sentence” having the same meaning as “cease to operate.” But we are persuaded that the use of different phrases in subsections (a) and (b) of Art. 42.08 is insignificant compared to the other considerations in this opinion. So a sentence is “completed,” for purposes of Art. 42.08(b), when it is served out in full day-for-day, or when a parole panel approves the inmate for parole release.
III. Erroneous Release
With this definition in mind, we address Kuester’s claim that he was erroneously released to parole in 1992. He argues he should not have been released to parole in 1992, but instead should have begun serving his second sentence. He seeks credit on his assault sentence for the period of his erroneous release.
On September 8, 1992, Kuester was granted parole. At that time, TDCJ-ID had improperly computed Kuester’s parole eligibility on the fourteen year total of his cumulative sentences. Nevertheless, despite this error, Kuester was also eligible for parole on his ten-year conviction had it been calculated singularly. Under the law in effect on the date of his offense, Kuester became eligible for parole on that sentence after his accrued calendar time and good time conduct exceeded one-fourth of his sentence.
Upon starting his second sentence, Kuester should have been given credit for the time he served in jail before trial.
So despite the fact that Kuester’s sentences had been improperly collectively calculated, on September 8, 1992, Kuester was in fact parole eligible on both his first and second sentence. His claim that he was erroneously released is not supported by the facts. Since his release was not erroneous, he is not entitled to credit for the time that he spent on parole.
IV. Credit after revocation
Although Kuester is not entitled to credit for time he spent on parole, we still must consider whether he is entitled to credit from the date his parole was revoked. The issue we face is what happens when an inmate is paroled on two consecutive sentences. Is he serving his parole on both sentences concurrently, even though the sentences were cumulated? If so, what happens when his parole gets revoked? Does he continue to serve his sentences concurrently, or do the sentences return to their consecutive status when the inmate returns to prison?
One option would be for consecutive sentences to be, in essence, “re-stacked” upon release to parole and then “re-stacked” again upon parole revocation. That is, the inmate serves the first sentence until he is approved for parole, then serves the second sentence until he makes parole. Upon his release to parole, he goes back to serving the first sentence on parole, serving only that sentence until it discharges, at which point he begins serving the second sentence on parole. If his parole gets revoked while serving the first sentence, he returns to custody only on that first sentence, and serves it alone until he is approved for parole. At that point, he begins serving his second sentence again. And so on.
The problem with this scenario is our well-settled law that once a person begins serving a sentence, that person continues serving the sentence, either in prison, on parole, or on mandatory supervision, until the sentence is discharged. A sentence must be continuous and a prisoner or inmate cannot be required to serve his sentence in installments.
Instead, we return to the definition of “cease to operate” in § 508.150(b)(2) of the Government Code for assistance. In subsection (A), a sentence can cease to operate by being fully served, day-for-day. When a sentence ceases to operate under this subsection, the next sentence in the series of consecutive sentences begins. A cumulated sentence in that situation does not begin to operate until the previous sentence is discharged. Under this scheme, the effective result is literally “stacked” sentences.
In contrast, subsection (B) is not a “stacking” of sentences in the literal sense. Under subsection (B), a sentence other than the last in a series of consecutive sentences ceases to operate when a parole panel designates the date on which the prisoner would have been eligible for release on parole if the prisoner had been sentenced to serve a single sentence. When a sentence ceases to operate under subsection (B), the next sentence in the series of consecutive sentences begins. The difference between the operation of cumulative sentences under subsection (A) and subsection (B) is that under subsection (B) the previous sentence has not yet been discharged when the next sentence begins.
Under subsection (B), when the first sentence ceases to operate and the second sentence begins, the inmate continues serving the first sentence while he serves the second sentence. That is, the first sentence ceases to operate for purposes of Art. 42.08, but it does not stop altogether. While the inmate is in custody serving his
Application
On September 8, 1992, the Board released Kuester on parole. At that point Kuester was on parole for both sentences until his parole was revoked in 1993. After Kuester’s parole was revoked for both sentences and he was returned to prison, he was serving both sentences concurrently since he had already begun serving each sentence.
So Kuester is entitled to the following credit on his four-year sentence: 552 days of pretrial credit shown in the judgment; credit for one day on September 8, 1992, which was the date he began serving his four-year sentence and the date on which he was released to parole; and credit from August 29, 1993, to the present, which was the date he was arrested on the parole violator warrant leading to the revocation of parole for both sentences. The record indicates that Kuester has not received all of that credit on his four-year sentence and that, upon receiving that credit, the sentence will be fully served.
V. Judgment
Relief is granted. The Texas Department of Criminal Justice-Institutional Division is ordered to amend Kuester’s records to reflect the credit in Cause Number 20,657, in the 3rd District Court of Anderson County, as follows: 552 days of pretrial credit shown in the judgment; credit for one day on September 8, 1992; and credit from August 29, 1993, to the present. We further order Kuester’s immediate release from further confinement in Cause Number 20,657.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Institutional Division, Paroles Division, and Board of Pardons and Paroles Division.
. See Tex. Dep't Crim. Justice, Consecutive Sentence Review Process, Administrative Directive AD-04.37 (September 5, 1997).
. See 22 Tex. Reg. 3042 (1997) (codified at 37 Tex. Admin. Code § 145.4) (Tex. Board of Pardons and Paroles, Parole Process).
. Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure.
. See Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Crim.App. 1982) (when the proper application of a sentence is governed by statute, a trial court is without authority to place limits on its manner of operation).
. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App. 1991).
. Ibid.
. Art. 42.08(b).
. Art. 3.01; Tex. Gov’t Code § 311.011; Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex.Crim.App. 1998).
. Webster’s Encyclopedic Unabridged Dictionary of the English Language, 301 (1989).
. See Basden v. State, 897 S.W.2d 319, 322 (Tex.Crim.App. 1995); see also Cannady v. State, 11 S.W.3d 205, 217-218 (Tex.Crim.App. 2000) (holding application of Art. 42.08(b) to an initial sentence in which the death penalty was assessed contrary to the intent of the statute).
. See, e.g., Ruthart, 980 S.W.2d at 473 (finding that the requirement of release to mandatory supervision only applies to the last case in a series of consecutive sentences).
. See, e.g., Tex Gov’t Code § 311.026(a) (if general and special provisions conflict, provisions should be construed, if possible, to give effect to both).
. Formerly Art. 42.18, § 8(b)(2).
. Formerly Art. 42.18, § 8(b)(1).
. Smith v. State, 744 S.W.2d 86, 96 (Tex.Crim.App. 1987) (our duty is to read and apply the law, not write it).
. Boykin, 818 S.W.2d at 786-87.
. Tex. Gov't Code § 311.023.
. House Bill 404, 69th Legislature, Law Enforcement Committee, 3/20/85, Tape 1, Side 1; Senate Bill 186, 69th Legislature, Bill Analysis.
. Ibid.; see also Basden, 897 S.W.2d at 322.
. Tex. Gov't Code § 311.023(4).
. Tex. Gov’t Code § 432.017(a).
. Id. at § 432.017(b).
. Tex. Gov’t Code § 493.015(g).
. Art. 56.11(a)(1).
. Tex. Gov’t Code § 508.150(b), formerly Art. 42.18, § 8(d)(2).
. Tex. Gov’t Code § 508.044.
. Tex. Gov't Code § 508.045.
. See Ex parte Esquivel, 531 S.W.2d 339 (Tex. Crim.App. 1976).
. Former Art. 42.18, § 8(b)(1), now located at Tex. Gov’t Code § 508.145(f).
. Art. 42.03.
. Former Art. 42.18, § 8(b)(1), now located at Tex. Gov’t Code § 508.145(f).
. Exporte Morris, 626 S.W.2d 754, 756 (Tex. Crim.App. 1982); Ex parte Bates, 538 S.W.2d 790, 793 (Tex.Crim.App. 1976).
. See Morris, 626 S.W.2d at 756; Bates, 538 S.W.2d at 793.
. Tex. Gov’t Code § 508.283(c).
Dissenting Opinion
dissenting.
The net effect of the Court’s opinion is that an applicant will serve his two stacked sentences concurrently at all times after he is designated for parole on his first sentence. Under the Court’s reading of Article 42.08(b) a prisoner will, usually, completely discharge his sentences in less time than the total of his two sentences. Because this appears to be contrary to the language and intent of the relevant statute, I dissent.
There are two possible ways of looking at the statute to give effect to the legislative mandatory stacking provision in a manner that the Court does not. First, the Court determines that “completed the sentence” in Article 42.08(b) means the same as “ceased to operate” in Article 42.08(a). Employing the usual rules of statutory construction, however, we should presume that the Legislature meant different things when it used different words in the two sections of the statute. The plain meaning of “completed the sentence” does
The Court acknowledges that this construction is not facially absurd, but contends that it is nevertheless incorrect because it renders Gov’t.Code § 508.150(a) meaningless and it permits the possibility of life without parole, in conflict with Gov’t. Code 508.145. I find neither argument persuasive. The effect of § 508.150(a) is limited by my proposed construction, but the statute is not rendered meaningless. And the conflict with § 508.145 is created only by the Court’s broad interpretation of the statute that authorizes parole.
A second manner of viewing the statute would be to conclude, as the Court does, that “complete” means the same as “cease to operate.” The question that then remains is what happens when a prisoner’s first sentence is “completed,” he serves time and is paroled on his second sentence, and his parole is revoked. Under the Court’s view, the sentences have been running concurrently since the first sentence was “completed” and so upon revocation of parole, they continue to run concurrently.
Again, this construction seems to be contrary to the mandatory stacking provision.
An alternate interpretation of the statute would be to hold that, upon revocation, the prisoner must serve out his first sentence until he again “completes” it, and then begin to serve his second sentence. That is, the sentences would run consecutively. As the statute requires.
The Court concedes that the only impediment to this construction of Article 42.08 is our “well-settled law” that a person may not be required to serve his sentence in installments. That proposition is well-settled, but for two reasons we should not follow it in this context. First, we should not use a rule we created, and that has never been expanded to reach this situation, in a manner that completely abrogates the Legislature’s directive, as it does here. The issue of what the statute requires is not answered by saying that our caselaw causes a problem with this construction. The Legislature is entitled to order sentences to be consecutive, regardless of what we have said about analogous matters.
Second, the proposition that a prisoner may not be required to serve his sentence in installments derives from the case of White v. Pearlman, 42 F.2d 788 (10th Cir. 1930). In that case and in the Texas cases that followed, the principle was used to give prisoners credit for time during which they were erroneously released from prison through no fault of their own. The courts concluded that a person should receive credit for time spent not incarcerated when he:
did no more than any other intelligent human being would have done under like circumstances — that is, to go home, when the court who had sentenced him, the county attorney who had prosecuted him, and the sheriff who had incarcerated him told him he could do so -
Either of the above alternatives more effectively candes out the mandatory stacking provision of Article 42.08(b) than does the method adopted by the Court. Given the Court’s conclusion, it is unnecessary at this juncture for me to decide which one is correct. With respect, I dissent.
. It seems clear that the Court’s opinion would require all stacked sentences to be treated the same, regardless of whether the stacking was ordered under Article 42.08(a) or (b).
Dissenting Opinion
filed a dissenting opinion.
In my view, a convicted person who seeks relief from an error in an administrative decision of the Department of Criminal Justice may not use the procedure in article 11.07 of the Code of Criminal Procedure, which “establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death.”
. Tex.Code Crim. Proc. art. 11.07, § 1.
Reference
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