Ex Parte Millard
Ex Parte Millard
Dissenting Opinion
filed a dissenting opinion.
Because I hold that the procedure of Article 11.07 of the Code of Criminal Procedure is not available for an application that does not “seek relief from a felony judgment” (id., section 1), I would dismiss this application that seeks relief from an administrative decision of the Department of Criminal Justice. See Ex parte Whiteside, 12 S.W.3d 819, 822 (Tex.Cr.App. 2000) (Womack, J., concurring).
Opinion of the Court
OPINION
delivered the opinion of the Court,
Earnest Millard was serving two stacked sentences when the Texas Department of Criminal Justice (TDCJ) released him to parole. We must decide whether his release to parole on either sentence was erroneous, entitling Millard to credit for the time he was at large. We conclude that the release was erroneous as to both sentences.
Background
Millard was convicted of burglary of a habitation and sentenced to ten years’ confinement. He was later convicted of criminal mischief and sentenced to four years to run consecutively with the ten-year burglary sentence. Millard was released on parole in the burglary case on April 5, 1990, because TDCJ officials mistakenly believed the sentences were concurrent. Parole was revoked on November 11, 1994. In the burglary case, Millard was credited with the time he was incarcerated under pre-revocation warrants. He was not otherwise credited on either the burglary or the criminal mischief sentence for the time between April 5, 1990, and November 11, 1994. TDCJ records currently show that Millard has not begun serving his four-year criminal mischief sentence.
Millard filed this post-conviction application for writ of habeas corpus alleging that his four-year sentence should have begun on April 5, 1990, in accord with Article 42.18, § 8(d)(2)(B).
Analysis
A.
We have consistently found time credit claims to be cognizable on a writ of habeas corpus.
B.
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.
Of course, to prevail in habeas, an applicant must show harm.
C.
At the time of Millard’s burglary conviction, the law provided that he would be eligible for parole when his calendar time served plus good conduct time equaled one-fourth of his sentence or 15 years, whichever was less.
D.
In this case, Millard was convicted of burglary on December 7, 1989, and re
But regardless of Millard’s technical eligibility for parole on the burglary case, the fact remains that he had another sentence — the criminal mischief sentence— stacked onto the burglary sentence. So Millard’s eligibility for parole was governed by former Art. 42.18, § 8(d)(3).
Millard’s four-year criminal mischief sentence began on April 5,1990, which was effectively the date the parole panel designated as the date Millard would have been eligible for release on parole if he had been sentenced to serve that single sentence.
E.
This conclusion is consistent with our recent decision in Kuester. In Kuester, we addressed the proper computation of time on stacked sentences. We concluded that an inmate serving stacked sentences begins serving his second sentence when his first sentence ceases to operate, which means the date it is served out in full day-for-day or the date when a parole panel approves the inmate for parole release.
Conclusion
Millard is entitled to credit on both sentences from April 5,1990, to November 11,
. Former TexCode Crim. Proc. Art. 42.18, § 8(d)(2)(B) (now Tex. Gov’t Code § 508.150(b)). Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure.
. See Ex parte Esquivel, 531 S.W.2d 339 (Tex.Crim.App. 1976).
. Ex parte Evans, 964 S.W.2d 643, 645 (Tex.Crim.App. 1998); Ex parte Ruthart, 980 S.W.2d 469, 470 (Tex.Crim.App. 1998); Ex parte Canada, 754 S.W.2d 660, 663 (Tex.Crim.App. 1988). See also Ex parte Henson, 731 S.W.2d 97 (Tex.Crim.App. 1987); Ex parte Peel, 626 S.W.2d 767 (Tex.Crim.App. 1982);
. Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000).
. Ex parte Kuester, 21 S.W.3d 264, 272 (Tex.Crim.App. 2000).
. Ibid.
. Ex parte Yates, 659 S.W.2d 840, 843 (Tex.Crim.App. 1983); Ex parte Morris, 626 S.W.2d 754 (Tex.Crim.App. 1982); Hurd, 613 S.W.2d at 744; Ex parte Tarlton, 582 S.W.2d 155 (Tex.Crim.App. 1979); Ex parte Iglehart, 535 S.W.2d 185 (Tex.Crim.App. 1976); Esquivel, 531 S.W.2d at 341; Ex parte Downey, 471 S.W.2d 576 (Tex.Crim.App. 1971); Ex parte Bates, 538 S.W.2d 790 (Tex.Crim.App. 1976).
. Ex parte Williams, No. 73,845, 2001 WL 356290 (Tex.Crim.App. April 11, 2001); Ex parte Tovar, 901 S.W.2d 484, 486 (Tex.Crim.App. 1995).
. Compare Ex parte Busby, No. 73,797, 2001 WL 219375 (Tex.Crim.App. March 7, 2001) (denial of time credits due to erroneous release warrants relief; implicitly finding harm element of habeas corpus established), with Williams, supra (failure to show harm from erroneous release to probation where no claim made of denial of time credits).
. Former Art. 42.18, § 8(b)(1) (now Tex. Gov't Code § 508.145(f)).
. Former Art. 42.18, § 8(d)(3) (now Tex. Gov’t Code § 508.150(c)(2)).
. Now Tex. Gov’t Code § 508.150(c)(2).
. Former Art. 42.12 § 8(d)(3) (now Tex. Gov’t Code § 508.150(c)(2)).
. Kuester, 21 S.W.3d at 266-71.
. Mat272.
. Former 42.18, § 8(d)(3) (now Tex Gov’t Code § 508.150(c)(2)).
. Kuester, 21 S.W.3d at 271-73.
Dissenting Opinion
filed a dissenting opinion.
In Kuester
It also seems absurd to me that an inmate could ever shorten a sentence by incurring a second sentence — and a stacked one, at that. But that also is happening in this case. According to the Court’s opinion in Kuester and its opinion today, because of applicant’s violation of parole on stacked sentences, his first sentence is shortened by four and a half years, and he will never serve his second sentence at all.
For a time, the Texas Department of Criminal Justice and the Board of Pardons and Paroles calculated eligibility for parole on stacked sentences by adding the two terms and figuring parole eligibility based on the total.
Despite the fact that stacked sentences will, under Kuester, necessarily run concurrently upon an inmate being designated for parole, I believe that the Court goes further than it needs in its holding today. In Kuester, we did not reach the question of time credits upon erroneous release because Kuester was not erroneously re
In this case, applicant was in fact eligible for parole on the first sentence when he was released. He then violated his parole and parole was revoked. The Legislature has declared that, upon revocation of parole, time credit is not to be awarded for time spent on parole.
Since applicant’s release to parole on the first sentence was proper, and his parole was later revoked, he should forfeit the time he served on parole, in accordance with § 508.283(b).
I respectfully dissent.
. Ex parte Kuester, 21 S.W.3d 264 (Tex.Crim.App. 2000).
. Id. at 264.
. Id. at 265.
. Id.
. Id. at 274 (Keller, J. dissenting).
. In fact, Kuester did not even seek time credit on both sentences. His claim was that he was erroneously released on his first sentence. Id.
. "If a person's parole, mandatory supervision, or conditional pardon is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person’s release to the date of revocation.” Tex. Gov’t Code § 508.283(b).
Concurring in Part
joined by MEYERS, J., concurring and dissenting.
It appears to me that, as the majority sets out, applicant was improperly released on the conviction for criminal mischief and that he is entitled to credit for the time spent at liberty. It also appears to me that his sentence in that conviction has now been discharged. However, as Judge Keller’s dissent points out, he was properly released on parole for his conviction for burglary and is not entitled to credit on that charge for the time spent at liberty. Post, at 195 (Keller, P.J., dissenting). Therefore, I concur in the judgment of the majority crediting applicant with time on his sentence for criminal mischief, but dissent to its judgment crediting applicant with time on his sentence for burglary.
In Ex parte Kuester, 21 S.W.3d 264 (Tex.Crim.App. 2000), the applicant had consecutive sentences of ten years and four years. When TDCJ ID received the information on the second sentence, it recalculated his parole eligibility by cumulat-ing the sentences to reflect a sentence of fourteen years, as was the practice at the time. Id. at 265. Thereafter, in 1992, Kuester was released on parole. In 1997, after his 1993 revocation on the combined sentence, TDCJ-ID revised its procedures for calculating parole eligibility such that inmates did not accrue time credit for consecutive sentences until the prior sen
After considering what meaning should be placed on “ceased to operate,” we held that it means the point at which the Board of Pardons and Paroles would have released the inmate on parole but for a pending consecutive sentence. Id. at 270. We went on to determine that, even using the procedures which came into use five years after his original release, Kuester had sufficient credit for proper parole on both cases and had not been erroneously released. We therefore denied credit on both cases for the time spent on parole.
The facts here are similar in some respects to the facts in Kuester’s request for credit for time spent on parole. Applicant had accrued sufficient time on the burglary sentence to be eligible for parole and was properly paroled on the burglary charge. "While he should have been retained in prison to begin serving the second sentence, his parole and release as to the burglary charge were proper. He is, therefore, not entitled to credit on that charge for the time he spent on parole, and may be required to serve out whatever time remained on his sentence at the time of his release.
In contrast, the applicant here had accrued no time in prison as to the second sentence and did not have enough time credit from other sources to be eligible for parole at that time. Because release on the second charge was, in fact, erroneous, applicant is entitled to credit for the time spent at liberty. That time exceeds the length of the second sentence, and the second sentence is therefore discharged.
. Because of the disposition of the question of credit for time spent on parole, the other issues of time credit found in Kuester are not germane in this case.
Reference
- Full Case Name
- Ex Parte Earnest A. MILLARD, Jr., Applicant
- Cited By
- 20 cases
- Status
- Published