Keller, Ex Parte Garrin Wardner

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,133

EX PARTE GARRIN WARDNER KELLER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 93-091-K277A FROM THE 277 TH DISTRICT COURT

WILLIAMSON COUNTY

Cochran, J., delivered the opinion of the Court in which Price, Johnson,

Keasler, Hervey, and Holcomb, JJ., joined . Meyers and Womack, JJ., not

participating . Keller, P.J., filed a dissenting opinion .

O P I N I O N

In this habeas corpus case we must determine whether a subsequent conviction for

indecency with a child makes applicant ineligible for street-time credit for his earlier burglary

offense under Texas Government Code § 508.283(c). We hold that it does not. Applicant is

eligible for street-time credit for the time he spent on mandatory supervision. Therefore, we

grant relief.

I.

Applicant is currently serving a nine-year sentence for the third degree felony offense

of burglary of a vehicle, an offense that he committed on October 30 , 1992. (1) In 1997, while

on parole for this burglary offense, applicant pleaded guilty to the second degree felony

offense of indecency with a child by contact, a crime which he had committed on June 7,

1993, some four years earlier. He was sentenced to two years imprisonment on this later

offense and had credit for time served beginning on October 31, 1994. Thus, applicant had

fully discharged the indecency sentence by October 30, 1996, even though he was not

actually convicted of that offense until 1997.

In his writ, applicant complains that he should have received street-time credit, under

Texas Government Code § 508.283, for all time spent on parole or mandatory release. (2)

The

trial court, however, concluded that "[a]pplicant is described in Section 508.149(a) of the

Government Code, due to his prior conviction for the offense of indecency with a child by

contact. Therefore, applicant is not entitled to credit for the time he spent on parole under

Section 501.0081 of the Government Code."

II.

We have previously held that the purpose of Section 508.283(c), which applies to any

parole or mandatory supervision revocation occurring after September 1, 2001, is that

"certain parole violators will receive street-time credit if the 'remaining portion' of their

sentence is less than the amount of time they have spent out on parole." (3) That is, if the

"remaining portion" of an inmate's sentence is greater than the time spent on parole or

mandatory supervision, he may not receive credit for that "street time." On the other hand,

if the "remaining portion" of his sentence is less than the time spent on parole or mandatory

supervision, that inmate will receive credit for all of his "street time." (4)

However, not all inmates are eligible for street-time credit. Under Section 508.283(c),

only an inmate "other than a person described by Section 508.149(a)" qualifies. Section

508.149(a) sets out a list of specific offenses for which an inmate is ineligible for release on

mandatory supervision. (5) This list includes the offense of indecency with a child. (6) Under

Section 508.149(a), an inmate is ineligible for mandatory supervision if he is "serving a

sentence for or has been previously convicted of" one of these offenses. (7) III.

At issue in this case is whether applicant is entitled to credit for any "street time" on

mandatory release for which his revocation occurred after September 1, 2001. (8) According

to the Texas Department of Criminal Justice (TDCJ), applicant was last released on

mandatory supervision on October 30, 2001. At that time, applicant had a scheduled

discharge date of October 5, 2004. Thus, he had 2 years, 11 months and 5 days remaining

on his burglary sentence. Applicant was returned to custody on November 12, 2003, and

revoked on May 24, 2004. He was out of custody for 2 years and 12 days. But TDCJ

refused to give applicant credit for this "street time" based on what it called his "previous"

conviction for indecency with a child. According to TDCJ's calculations, applicant had a

scheduled mandatory release date of March 20, 2005, and a discharge date of October 17,

2006.

As noted above, Section 508.283 would grant applicant "street time" credit if, at the

time the parole revocation warrant issued, he had spent more time on release than he had left

to serve and he is not a person "described by § 508.149(a)." Because applicant spent more

time on mandatory supervision (2 years and 12 days) than he had left to serve (less than a

year), the only question is whether he is a person described by Section 508.149(a): is he an

inmate ineligible for mandatory supervision?

"Eligibility for mandatory supervision is governed by the law in effect at the time the

offense was committed." (9) When applicant committed his "holding offense," the 1992

burglary of a vehicle, he was eligible for release to mandatory supervision. (10) Once eligible

he remains eligible regardless of whether the applicable mandatory supervision law has

changed in the meantime. (11) This is why he was released on mandatory supervision in 2001

even though he had, by then, been convicted of indecency with a child, an offense for which

he would be ineligible for release on mandatory supervision. Because the laws applying to

applicant in 1992, when he committed the burglary of a vehicle offense, permitted his release

to mandatory supervision, he is not a person described by § 508.149(a). (12)

Furthermore, the indecency-with-a-child conviction is not a previous conviction which

could affect applicant's eligibility for release on mandatory supervision for the earlier

burglary offense, it is a later or subsequent conviction. Under the plain language of

§508.149(a), a previous conviction is one obtained before the holding conviction, not after

the holding conviction. Only if the indecency conviction were the holding offense (or if the

holding offense were one committed after the 1997 indecency conviction) would applicant

be a person "described by § 508.149(a)." (13)

TDCJ's position (14) is that inmates in applicant's position are not eligible for street-credit time under Section 508.283(c):

We believe that eligibility for street time should depend strictly upon whether

the person is one "described by Section 508.149(a)" at the time they are

revoked; in other words, when revoked, does the offender have a current or

prior conviction for an offense as listed in § 508.149(a)?

TDCJ argues that the legislature has used the list of violent offenses set out in § 508.149(a)

as a means to identify particularly heinous offenses for various purposes, but legislative

reference to that statute does not mean that its categorization is in lockstep with eligibility

for mandatory supervision. TDCJ further notes that there is no ex post facto concern with

determining eligibility for street-time credits based upon all of the inmate's

convictions-whether obtained before or after the commission of the "holding" offense-at the

time of his parole revocation. (15)

Under TDCJ's interpretation, the phrase "previously convicted" in § 508.149(a) means

"convicted before the commission of the holding offense" when determining eligibility for

mandatory supervision, but that same phrase in that same statute means "convicted before

the date of parole revocation" when determining eligibility for street-time credit under

Section 508.283(c). TDCJ notes that in Ex parte Spann , this Court stated that the legislative

purpose of Section 508.283(c) "was to lessen the sentence of non-violent parole violators

(versus violent parole violators) whose time spent out on parole exceeded their remaining

sentences." (16)

TDCJ's position is a logical one-the legislature intended Section 508.283(c) to grant

street-time credits only to those inmates who were convicted of non-violent offenses and who

have never been convicted of any violent offense. But that is not what Section 508.283(c)

says. It says that any inmate "other than a person described by Section 508.149(a)" is eligible

for street-time credits. And a person described by Section 508.149(a) is one who is "serving

a sentence for or has been previously convicted of" one of the enumerated violent felonies.

In that section, the phrase "previously convicted of" means that the person has been

convicted of a violent felony before committing the holding offense. (17)

Under the normal rules of statutory construction, there is a presumption of statutory

consistency. That is, a word or phrase that is used within a single statute generally bears the

same meaning throughout that statute and that when a second statute refers to the first statute,

words or phrases within the first statute will bear their same meaning in the second statute. (18)

As the United States Supreme Court has stated, "the normal rule of statutory construction"

is that "identical words used in different parts of the same act are intended to have the same

meaning." (19) Although that presumption may give way if the legislature has clearly intended

a different result, we are unable to find any clear indication that the legislature intended that

the term "previously convicted" in Section 508.149(a) carry an entirely different meaning for

purposes of good-time credits under Section 508.283(c) than it does for purposes of

determining eligibility for release on mandatory supervision.

Thus, we find that the plain meaning of the term "previously convicted" in §

508.149(a) is the same when it is used to describe those who are ineligible for release on

mandatory supervision as when it is used to describe those who are ineligible for "street

time" credit under § 508.283(c).

In this case, applicant is not serving a sentence for indecency with a child.

Applicant's holding conviction for burglary occurred before his conviction for indecency

with a child. Therefore, applicant's indecency conviction cannot be called a "previous"

conviction under § 508.149(a) and make him ineligible for street-time credit on the burglary

conviction. (20)

Applicant is entitled to relief. TDCJ shall treat applicant as an inmate eligible for

release to mandatory supervision and, because applicant qualifies for street-time credit, shall

credit him with his out-of-custody time during his latest release. Copies of this opinion shall

be sent to TDCJ-CID and the Board of Pardons and Paroles.

Cochran, J.

Delivered: October 5, 2005

Publish

1. Applicant was originally placed on deferred adjudication for four years, but, in

November 1993, he was adjudicated and placed on ten years straight probation. In 1994, that

probation was revoked, and he was sentenced to nine years in prison.

2. Applicant had previously filed several time-credit disputes with the Time Credit

Resolution Office of the Texas Department of Criminal Justice. The last one filed was pending

when he filed his writ. Applicant was, at that time, within 180 days of his presumptive

mandatory supervision release date. Therefore, the trial court concluded that applicant was

excused from the administrative exhaustion requirement. Tex. Gov't Code § 508.0081

("Subsection (b) does not apply to an inmate who, according to the department's computations, is

within 180 days of the inmate's presumptive parole date, date of release on mandatory

supervision . . .").

3.

Ex parte Spann , 132 S.W.3d 390, 392 (Tex. Crim. App. 2004). As noted in Spann , the

wording of Section 508.283(c) is opaque and subject to different interpretations. Compare id. at

393 , with id. at 398-99 (Keller, P.J., dissenting) (noting that "[s]tanding alone, the wording

concerning the third class of offenders [listed in § 508.283(c)] is confusing"). The statute reads

as follows:

(c) If the parole, mandatory supervision, or conditional pardon of a person other

than a person described by Section 508.149(a) is revoked, the person may be

required to serve the remaining portion of the sentence on which the person was

released. For a person who on the date of issuance of a warrant or summons

initiating the revocation process is subject to a sentence the remaining portion of

which is greater than the amount of time from the date of the person's release to

the date of issuance of the warrant or summons, the remaining portion is to be

served without credit for the time from the date of the person's release to the date

of revocation. For a person who on the date of issuance of the warrant or

summons is subject to a sentence the remaining portion of which is less than the

amount of time from the date of the person's release to the date of issuance of the

warrant or summons, the remaining portion is to be served without credit for an

amount of time equal to the remaining portion of the sentence on the date of

issuance of the warrant or citation.

Tex. Gov't Code § 508.283(c).

4.

Ex parte Spann , 132 S.W.3d at 393 .

5.

Ex parte Byrd , 162 S.W.3d 250, 252 (Tex. Crim. App. 2005).

6. Tex. Gov't Code § 508.149(a)(5)("a second degree felony or a third degree felony

under Section 21.11, Penal Code").

7.

Id.

8. Applicant claims that he is entitled to street-time credit for several pre-2001 time

periods, but Section 508.283 does not apply to an inmate's "street time" for which the inmate's

parole was revoked before September 1, 2001.

See Ex parte Spann , 132 S.W.3d at 394 & n. 7. In

Spann , we stated that "[p]rior to 2001, section 508.283 prescribed that any parole violator

forfeited the benefit of street-time credit." Id. at 394 . (emphasis in original). We then noted,

Before the 2001 amendments, section 508.283(c) merely stated: "If a person's

parole . . . [or] mandatory supervision . . . 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

[RELEASE date] to the [REVOCATION date]." See Act of July 1, 1999, 76th

Leg., R.S., 1999 Tex. Gen. Laws 62 .

Id. n.7.

9.

Ex parte Byrd , 162 S.W.3d at 252 .

10. Tex. Code Crim. Proc. Art. 42.18, § 8(c) (Repealed by Acts 1997, 75th Leg., ch. 165,

§ 12.22, eff. Sept. 1, 1997).

11.

See Ex parte Mabry , 137 S.W.3d 58, 59-60 (Tex. Crim. App. 2004). In Mabry , this

Court stated,

The amendments contained in Chapter 263 of the Session Laws for the 74th

Legislature (1995), which became effective September 1, 1996, contained a

saving clause.

Section 3(a) The change in law made by this Act applies only to a

prisoner serving a sentence for an offense committed on or after the

effective date of this Act. For purposes of this section, an offense

is committed before the effective date of this Act if any element of

the offense occurs before the effective date.

Section 3(b) A prisoner serving a sentence for an offense

committed before the effective date of this Act is covered by the

law in effect when the offense was committed, and the former law

is continued in effect for that purpose.

Session Laws, 74th Legislature, Regular Session, Chapter 263, §§ 3 and 4 (1995).

These clauses reflect a clear intention by the Legislature to apply the old

law to prisoners serving a sentence for an offense committed prior to the

September 1, 1996, effective date. Thus, the law prior to those revisions applies

to applicant, whose offense was committed in 1990.

Id.

12.

See Ex parte Ervin , ___ S.W.3d ___, ___, 2005 Tex. Crim. App. LEXIS 518, *6-7

(Tex. Crim. App. 2005) ("In 1995, the legislature went further and made ineligible those inmates

who had ever been convicted of one of the enumerated offenses. . . . Specifically, the bill analysis

for House Bill 1433 of the 74th Regular Legislative Session, which amended Article 42.18,

Section 8(c), supports the conclusion that the legislature intended to include all prior serious

offenses. The changes were intended to Amend[] Section 8(c), Article 42.18, Code of Criminal

Procedure, to prevent those previously convicted of crimes ineligible for mandatory supervision

from eligibility for any future conviction, regardless of the current offense") (citing Act of May

29, 1995, 74th Leg. R.S., ch. 263, § 1, 1995 Tex. Gen. Laws 2592 (now codified in Tex. Gov't.

Code § 508.149(a)) & House Comm. on Corrections, Bill Analysis, Tex. H.B. 1433, § 1,

75th Leg., R.S. (1995)).

13.

See Ex parte Mabry , 137 S.W.3d at 63 (Keasler, J., concurring) ("When an inmate has

multiple convictions, he will have one conviction which governs his release date, either because

it is the most recent, contains the longest sentence, or has the least amount of time credits. It is

the conviction that will keep the prisoner in custody for the greatest amount of time. A

prisoner's governing or "holding" conviction could be for an offense committed after 1997, but

he might also have a previous conviction for first-degree burglary. In that instance, the

Legislature sought to make clear that § 508.149 would apply to him, because the holding

conviction is for an offense that was committed after the statute's effective date. Even if that

holding conviction were not on the list of enumerated offenses, the prisoner would still be

ineligible for mandatory supervision if he had previously been convicted of an offense on the

list.").

14. Although TDCJ has not submitted a brief in this case, it has submitted a letter brief in a

different writ application, Cause No. 1991CR0997;

Henry Lugo Anguiano , No. WR-62,090-01,

dealing with the same question. We do not normally consider materials and arguments submitted

in one case when deciding another case, but because applicant is in TDCJ's physical custody and

any relief granted would be directed toward TDCJ, its legal rationale for the grant or denial of

"street time" credits under Section 508.283 should be addressed.

The construction of a statute made by an administrative agency charged with its

enforcement is entitled to great consideration when that statute is ambiguous and if the

construction is reasonable and does not contradict the statute's plain language. Tex. Gov't

Code § 311.023(6); see Boykin v. State , 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991)

(stating that "[i]f the plain language of a statute would lead to absurd results, or if the language is

not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally

permissible for a court to consider, in arriving at a sensible interpretation, such extratextual

factors as executive or administrative interpretations of the statute or legislative history");

Tarrant Appraisal Dist. v. Moore , 845 S.W.2d 820, 823 (Tex. 1993) ("Construction of a statute

by the administrative agency charged with its enforcement is entitled to serious consideration, so

long as the construction is reasonable and does not contradict the plain language of the statute.").

Because we conclude that the meaning of the term "previously convicted" in 508.149(a)

is not ambiguous and is subject to the Boykin "plain meaning" analysis of statutory construction,

we decline to give great deference to TDCJ's interpretation of that phrase. Nonetheless, we

acknowledge and address TDCJ's legal position even though we ultimately do not adopt it.

15. TDCJ may be correct in its

ex post facto argument, see Johnson v. State , 930 S.W.2d

589, 591 (Tex. Crim. App. 1996), but the issue is not whether the Constitution bars TDCJ's

interpretation of the statute, but rather whether the term "prior conviction" has a single,

consistent meaning within a statute, even when other statutes refer back to the original one, or

whether that meaning changes like a chameleon.

16.

Ex parte Spann , 132 S.W.3d at 393-94 .

17.

See Ex parte Ervin , ___ S.W.3d ___, ___, 2005 Tex. Crim. App. LEXIS 518, at *6-7

(Tex. Crim. App. 2005) (noting that, in amending the mandatory supervision law, "the legislature

intended to include all prior serious offenses. The changes were intended to . . . prevent those

previously convicted of crimes ineligible for mandatory supervision from eligibility for any

future conviction, regardless of the current offense") (citation omitted), Ex parte Mabry , 137

S.W.3d 58, 63 (Tex. Crim. App. 2004) (Keasler, J., concurring) (discussing the legislative

rationale for referring to previous convictions in § 508.149 and noting that even "if that holding

conviction were not on the list of enumerated offenses, the prisoner would still be ineligible for

mandatory supervision if he had previously been convicted of an offense on the list"); Ex parte

Hall , 995 S.W.2d 151, 152 (Tex. Crim. App. 1999) (using the terms "previous conviction" and

"prior conviction" interchangeably under § 508.149 with both terms meaning a conviction

obtained before the "holding" conviction).

18.

See, e.g., Texas Dept. of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002) ("In

ascertaining a term's meaning, courts look primarily to how that term is used throughout the

statute as a whole. Statutory terms should be interpreted consistently in every part of an act")

(citations omitted); Brown v. Darden, 121 Tex. 495, 500 , 50 S.W.2d 261, 263 (Tex. 1932)

("Whenever a legislature has used a word in a statute in one sense and with one meaning, and

subsequently uses the same word in legislating on the same subject-matter, it will be understood

as using it in the same sense, unless there be something in the context or the nature of things to

indicate that it intended a different meaning thereby"); Alexander v. State , 84 Tex. Crim. 75, 80 ,

204 S.W. 644, 647 (Tex. Crim. App. 1918) ("In the absence of any direct judicial interpretation

of the language under construction, the use of these phrases in substantially the same connection,

where their meaning is undisputed, would seem to afford the best guide as to the legislative

intent"); Guthery v. Taylor , 112 S.W.3d 715, 721-22 (Tex. App.-Houston [14 th Dist.] 2003, no

pet.) ("when construing a statutory word or phrase, a court may take into consideration the

meaning of the same or similar language used elsewhere in the act or in another act of similar

nature. When the same or a similar term is used in the same connection in different statutes, the

term will be given the same meaning in one as in the other, unless there is something to indicate

that a different meaning was intended.") (citations omitted).

19.

Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) (quoting Department of

Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)); See also Desert Palace, Inc. v.

Costa, 539 U.S. 90, 101 (2003); Commissioner v. Lundy, 516 U.S. 235, 250 (1996) ("The

interrelationship and close proximity of these provisions of the statute presents a classic case for

application of the normal rule of statutory construction that identical words used in different parts

of the same act are intended to have the same meaning.") (internal quotations omitted).

20.

Cf. Ex parte Ervin, ___ S.W.3d at ___, 2005 Tex. Crim. App. LEXIS 518 at *8

("applicant is not eligible for mandatory supervision release because he has been previousl y

convicted of a second degree predecessor of Penal Code Section 22.011 (sexual assault) and

because Government Code Section 508.149(a) precludes from release inmates who have been

convicted of such an offense or its predecessors") (emphasis supplied).