Phillips, Sherron Dondriel

WR-82,437-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/13/2015 9:25:28 AM

March 13, 2015 Accepted 3/13/2015 9:54:30 AM

ABEL ACOSTA

No. WR-82,437-01 CLERK

______________________________

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

______________________________

EX PARTE SHERRON DONDRIEL PHILLIPS, Applicant.

______________________________

On Application for a Writ of Habeas Corpus

Cause No. CR-566-12-D(1), In the 206th District Court

From Hidalgo County

______________________________

BRIEF FOR THE TEXAS BOARD OF PARDONS AND PAROLES

______________________________

KEN PAXTON *JOSEPH P. CORCORAN

Attorney General of Texas Assistant Attorney General

Supervising Attorney

CHARLES E. ROY for Non-Capital Appeals

First Assistant Attorney GeneralCriminal Appeals

Division

State Bar No. 00793549

EDWARD L. MARSHALL Joseph.Corcoran@TexasAttorneyGeneral.gov

Chief, Criminal Appeals Division

P. O. Box 12548, Capitol Station

Austin, Texas 78711

*Lead Appellate Counsel Telephone: (512) 936-1400

Facsimile: (512) 936-1280

_____________________________

ATTORNEYS FOR THE

TEXAS BOARD OF PARDONS AND PAROLES

IDENTITY OF PARTIES AND COUNSEL

To assist this Honorable Court in determining disqualification and

recusal, the Board of Pardons and Paroles certifies the following is a

complete list of the parties and their attorneys in accordance with Texas

Rule of Appellate Procedure 38.1(a).

1. Applicant

SHERRON DONDRIEL PHILLIPS

TDCJ-CID No. 1926973

2. Counsel for Applicant

ALFREDO MORALES JR.

Texas Bar Number 14417290

700 S. 25 1/2 St. E.

Mcallen, TX 78501

3. Counsel for Applicant at trial

TORIBIO “TERRY” PALACIOS

(Deferred adjudication proceeding)

Texas Bar Number 15423050

1805 E Russell

Edinburg, TX 78539

MICHAEL TUTTLE

(Guilty plea proceeding)

Texas Bar Number 24037620

PO Box 4450

Edinburg, TX 78540

ii

4. Counsel for the State

GLENN DEVINO

(This proceeding)

Assistant District Attorney

Texas Bar Number 24012525

100 N. Closer

Edinburg, Texas 78539

JOAQUIN J. ZAMORA

(Both the deferred adjudication and guilty plea proceeding)

Texas Bar Number 24003229

Hidalgo County Courthouse

100 North Closner, Rm. 303

Edinburg, TX 78539

5. Counsel for the Board of Pardons and Parole

JOSEPH P. CORCORAN

Assistant Attorney General

Texas Bar Number 00793549

P. O. Box 12548, Capitol Station

Austin, Texas 78711

Tel.: (512) 936-1400

Fax: (512) 936-1280

6. Trial Court Judge

ROSE GUERRA REYNA

(Both the state habeas proceeding and adjudication proceeding)

G. JAIME GARZA

(Guilty plea proceeding)

iii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ............................................. ii

TABLE OF CONTENTS ......................................................................... iv

INDEX OF AUTHORITIES ................................................................... vii

STATEMENT OF THE CASE ................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................. 2

STATEMENT OF THE ISSUES .............................................................. 3

SUMMARY OF THE ARGUMENTS ....................................................... 4

ARGUMENT ............................................................................................ 5

I. Because Applicant’s Legal Claim Does Not Advance a

Cognizable Liberty Interest, Article 11.07 is Unavailable to

Advance That Claim......................................................................... 5

A. To the extent that Applicant is asking this Court

to review the Board’s decision to deny him parole,

Article 11.07 does not provide a remedy because

the decision is not a proper subject of judicial

review ...................................................................................... 6

B. To the extent that Applicant is asking this Court

to determine whether § 508.1411 creates a liberty

interest, Applicant’s contention is reviewable by

this Court under Article 11.07 as a matter of first

impression. ............................................................................ 10

iv

TABLE OF CONTENTS, Continued

C. The language of § 508.1411 does not create a

liberty interest in parole ....................................................... 12

D. Where, as here, no liberty interest is implicated by

statute, and hence, no due-process rights are

created by statute, a prisoner is not entitled to a

written statement of the reasons for denial of

parole ..................................................................................... 16

E. Since Applicant’s claims do not implicate due

process protections, they do not advance a

cognizable basis for habeas relief, and Article

11.07 is not available going forward to challenge

the written reasons of the Board to deny simple

parole ..................................................................................... 18

II. Because § 508.1411 Does Not Create an Independent,

Freestanding Liberty Interest, a Prisoner Is Not

Constitutionally Entitled to a Written Statement of the

Reasons for Denial of Parole; Hence, There Can Be No Due

Process Violation Whether or Not the Board’s Reasons for

That Denial Comport With § 508.1411 .......................................... 19

III. An Application for a Writ of Mandamus Is Not the Proper

Remedy for Applicant’s Claim ....................................................... 20

A. The Court does not have jurisdiction to issue the

writ of mandamus in this circumstance ............................... 20

B. Alternatively, mandamus is wholly inappropriate;

Applicant has an adequate remedy at law ........................... 23

PRAYER FOR RELIEF .......................................................................... 26

v

TABLE OF CONTENTS, Continued

CERTIFICATE OF SERVICE ................................................................ 27

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF

APPELLATE PROCEDURE 9.4 ............................................................ 28

vi

INDEX OF AUTHORITIES

Cases

Bd. of Pardons & Paroles v. Court of Appeals for the Eighth Dist., 910

S.W.2d 481 (Tex. Crim. App. 1995)........................................................ 5

Board of Pardons v. Allen, 482 U.S. 369 (1987) ..................................... 13

Braxton v. Dunn, 803 S.W.2d 318 (Tex. Crim. App. 1991) .................... 23

Connecticut Bd. Pardons v. Dumschat, 452 U.S. 458 (1981) ................. 13

Dickens v. Court of Appeals, 727 S.W.2d 542 (Tex. Crim. App. 1987) .. 21

Ex parte Davis, 947 S.W.2d 216 (Tex. Crim. App. 1997) ....................... 20

Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000) ............... passim

Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999) ..................... 20

Ex Parte Hallmark, 883 S.W.2d 672 (Tex. Crim. App. 1994) .................. 8

Ex parte McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002) ...................... 11

Ex parte McLain, 869 S.W.2d 349 (Tex. Crim. App. 1994) .................... 10

Ex parte Montgomery, 894 S.W.2d 324 (Tex. Crim. App. 1995) 12, 13, 16

Ex parte Palomo, 759 S.W.2d 671 (Tex. Crim. App. 1988)..................... 18

Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004) ...................... 14

Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) ......................... 11

vii

Ex parte Ruiz, 750 S.W.2d 217 (Tex. Crim. App. 1988) ........................... 9

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987) .................... 8

Ex parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005) .................. 6

Fabries v. U.S. Bd. of Parole, 484 F.2d 948 (7th Cir. 1973) ................... 17

Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1

(1979) .................................................................................... 9, 12, 16, 17

Kentucky Dep’t Corr. v. Thompson, 490 U.S. 454 (1989) ....................... 12

Peck v. Battey, 721 F.2d 1157 (8th Cir. 1983) ........................................ 17

Robinson v. State, 783 S.W.2d 648 (Tex. App.—Dallas 1989) ................. 7

Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987) ...... 21, 22, 23, 25

State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex. Crim. App. 1987) .... 23

State ex rel. Millsap v. Lozano, 692 S.W.2d 470 (Tex. Crim. App. 1985)

.............................................................................................................. 20

State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex. Crim. App. 1985) .... 21

State v. Klein, 224 S.W.2d 250 (Tex. Crim. App. 1949) ......................... 20

Tex. Gov’t Code § 508.144 ....................................................................... 16

viii

Statutes

Act of May 26, 2013, 83rd Leg., R.S., ch. 1154, § 14, 2013 Tex. Sess. Law

Serv. ch. 1154 ......................................................................................... 7

Tex. Code Crim. Proc. art. 4.04 ............................................................... 21

Tex. Gov’t Code § 22.002 ......................................................................... 22

Tex. Gov’t Code § 508.001(6) ..................................................................... 1

Tex. Gov’t Code § 508.0441 ....................................................................... 7

Tex. Gov’t Code § 508.1411 ................................................................. 7, 15

Tex. Gov’t Code § 508.145(f) ...................................................................... 6

Tex. Gov’t Code § 508.149(d) ..................................................................... 9

Regulations

37 Tex. Admin. Code § 145.17 ..................................................... 18, 23, 24

37 Tex. Admin. Code § 145.6 ..................................................................... 7

ix

STATEMENT OF THE CASE

Applicant was convicted of possession of marihuana and sentenced

to forty-two months’ imprisonment. SHCR at 47–50.1 He did not appeal

his conviction. See Order at 1, Ex parte Phillips, No. WR-82,437-01 (Tex.

Crim. App. Dec. 17, 2014) (per curiam) (“Order”). As relevant here, on or

about August 1, 2014, the Board of Pardons and Paroles (“Board”)

conducted a simple parole review2 and decided not to grant Applicant his

release under the Texas parole statute. Order at 1. As part of this process,

the Board provided Applicant with written notice describing the reasons

for its denial. SHCR at 9. Applicant filed a habeas application pursuant

to the provisions of Article 11.07 of the Texas Code of Criminal Procedure,

in which he contended that the Board’s written notice of its denial

decision violated the Due Process Clause. Order at 1; SHCR at 7–8.

1“SHCR” refers to the clerk’s record for this state habeas application,

numbered WR-82,437-01. The Board will use the following format: “SHCR at [page].”

2 The Board will use the terms “simple parole” or alternatively “parole” to refer

to “the discretionary and conditional release of an eligible inmate sentenced to the

institutional division so that the inmate may serve the remainder of the inmate’s

sentence under the supervision of the pardons and paroles division.” Tex. Gov’t Code

§ 508.001(6) (West 2011) (emphasis added).

1

The state habeas trial court entered proposed findings of fact and

conclusions of law and recommended that Applicant’s application be

denied. SHCR at 52–55. The clerk of the trial court then transmitted the

application to this Court. The Court ordered that this application be filed

and set for submission to determine the following three questions:

(1) whether an applicant who contends that under §

508.1411 the [Board’s] written notice violates the Due

Process Clause of the United States Constitution has an

adequate remedy on habeas when there is not a

presumption of release to parole;

(2) assuming for the sake of argument that an applicant

does have an adequate remedy on habeas, whether §

508.1411 implicates due process and the written notice

provided by the [Board] satisfies due process; and

(3) whether an application for a writ of mandamus is the

proper remedy for such claims.

Order at 1–2 (citations omitted). The Court also invited the Board to

submit a brief to assist the Court in resolving the three issues. Order at

2.

STATEMENT REGARDING ORAL ARGUMENT

The Board respectfully submits that the primary legal questions

raised in this appeal are adequately presented in the briefs and record,

2

and that the decisional process on this point would not be significantly

aided by oral argument.

STATEMENT OF THE ISSUES

Unhappy with the Board’s decision to deny him parole, Applicant

filed an Article 11.07 habeas application in which he contended that the

Board’s written notice of its denial decision violated the Due Process

Clause. SHCR at 7–8. While Applicant suggests the existence of a due

process violation, he does not contend that the Board violated the

statutory requirements in Section 508.1411 of the Texas Government

Code when it provided its written reasons for denying parole. See SHCR

at 7–8. Nor does Applicant contend that any of the reasons provided in

the Board’s denial notice constituted a violation of the Board’s rules or

were factually or legally erroneous. See id. Rather, Applicant’s sole

contention is that the Board did not provide him “with

adequate/sufficient information supporting . . . [its] denial of parole[,]”

and that this purported failing constituted a violation of his

constitutional right to due process. SHCR at 8.

3

SUMMARY OF THE ARGUMENT

The first and second questions posed by the Court are intertwined.

The first asks whether Applicant’s particular due process claim is

cognizable under Article 11.07; the second assumes that it is, and then

asks whether Applicant might be able to establish that due process

violation. To answer the first question, however, requires a partial

answer to the second, i.e., if due process is not implicated by either §

508.1411 or the Board’s written notice denying parole, then under this

Court’s precedent, Applicant’s claim is not cognizable under Article

11.07. The answer to the second question, therefore, will partially answer

the first.

This does not mean, however, that Applicant’s present application

cannot be resolved by this Court under Article 11.07. Even if the Court

finally holds that claims like Applicant’s—ones that merely challenge the

sufficiency of the Board’s written reasons to deny simple parole—are not

cognizable in state habeas, this does not mean the Court is without

authority to make such a determination pursuant to Article 11.07, as a

matter of first impression in this case.

4

As the Board will demonstrate below, there is good reason that this

proceeding should not be cognizable under Article 11.07. Applicant’s

effort to turn a simple parole denial into an adversarial judicial

proceeding to test the “adequacy” of the Board’s written reasons in

denying parole is not supported by either Texas law or the Constitution.

The Court should therefore use this opportunity to confirm that §

508.1411 did nothing to change discretionary nature of parole denial in

Texas.

ARGUMENT

I. Because Applicant’s Legal Claim Does Not Advance a Cognizable

Liberty Interest, Article 11.07 is Unavailable to Advance That

Claim.

Before addressing the specifics of Applicant’s claim, the Board first

acknowledges that complaints related to parole are not always beyond

the scope of Article 11.07. “Parole is a form of restraint which allows an

applicant to pursue the remedies afforded under Article 11.07.” Bd. of

Pardons & Paroles v. Court of Appeals for the Eighth Dist., 910 S.W.2d

481, 483 (Tex. Crim. App. 1995). “A claim that parole or other form of

administrative release has been unlawfully revoked must be brought to

5

the attention of the convicting court under Article 11.07.” Id. But, as the

Board will establish below, Applicant’s particular parole complaint

cannot be brought under Article 11.07.

A. To the extent that Applicant is asking this Court to review the

Board’s decision to deny him parole, Article 11.07 does not

provide a remedy because the decision is not a proper subject

of judicial review.

The parole statute in effect when the holding offense is committed

determines an inmate’s parole-release eligibility. Ex parte Thompson,

173 S.W.3d 458, 459 (Tex. Crim. App. 2005). As relevant here, Applicant’s

holding offense was committed on October 7, 2011. SHCR at 28. Thus, an

inmate like Applicant, who is not serving a sentence for one of several

disqualifying convictions, is eligible for release to 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.” Tex. Gov’t

Code § 508.145(f) (West 2011). Once an inmate reaches that point, he is

only eligible for release to parole because § 508.145(f) does not mandate

that the inmate be released. Rather, when the inmate accrues sufficient

time-served credit under the statute, the Board determines—with near

6

absolute discretion—whether to grant or deny parole. See Tex. Gov’t

Code § 508.0441(a) (West 2011.).

Effective September 1, 2013, the Legislature directed the Board to

provide inmates like Applicant with a written statement containing the

reasons for the Board’s decision not to release him to parole. See Act of

May 26, 2013, 83rd Leg., R.S., ch. 1154, § 14, 2013 Tex. Sess. Law Serv.

ch. 1154 (West) (codified at Tex. Gov’t Code § 508.1411). The Board’s

administrative regulations require the same.3 See 37 Tex. Admin. Code §

145.6 (2014) (Tex. Bd. Pardons and Parole). The Board complied with its

legal obligations when it provided Applicant with written notification of

the reasons it denied parole. SHCR at 9. Applicant, however, is not

pleased with the reasons given by the Board in support of its decision to

3 Moreover, pursuant to the Board’s published policies and directives, it was

providing such notification before the 2013 change in the law. E.g., Texas Board of

Pardons and Paroles, Board Polices and Directives, BPP-DIR. 08-03.08,

<http://www.tdcj.state.tx.us/bpp/policies_directives/policies_directives.html> (last

visited March 9, 2015) (showing that pursuant to a March 21, 2008 Board Directive,

inmates received written notice of the reasons for a parole panel denial). Although

the Board’s historic policy in this regard is not outcome determinative to this appeal,

the Board cites it to demonstrate that § 508.1411 did not actually change the Board’s

practice. See Robinson v. State, 783 S.W.2d 648, 652–53 (Tex. App.—Dallas 1989),

aff’d and opinion adopted, 841 S.W.2d 392 (Tex. Crim. App. 1992) (outlining the

circumstances in which an appellate court can take judicial notice of facts like the

Board’s executive policy, if they are “capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned”).

7

deny him parole; he considers them constitutionally inadequate. See

SHCR at 7–8.

To the extent that Applicant is attacking the adequacy of those

reasons in support of a desire to be released to parole, his contention is

synonymous with the decision to deny parole itself, and it is not

reviewable by this Court under the auspices of Article 11.07. This is

because the decision of whether to release an inmate to simple parole—

even though he is eligible—remains within the sound discretion of the

Board and is not subject to judicial review. See Ex parte Geiken, 28

S.W.3d 553, 556 (Tex. Crim. App. 2000) (citing Ex parte Rutledge, 741

S.W.2d 460 (Tex. Crim. App. 1987), overruled on other grounds by Ex

Parte Hallmark, 883 S.W.2d 672, 674 (Tex. Crim. App. 1994)). “[W]e have

reviewed procedures that relate to the granting of . . . parole without

reviewing the parole board’s ultimate decision granting or denying . . .

parole.” Id. at 557 (citing Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex. Crim.

8

App. 1988)).4 And the Court provided a powerful justification for this rule

in Ex parte Geiken:

The simple fact is that not all government decisions

implicate constitutional rights and not all such decisions are

subject to review. As the Supreme Court noted, “[d]ecisions of

the Executive Branch, however serious their impact, do not

automatically invoke due process protection; there simply is

no constitutional guarantee that all executive decisionmaking

must comply with standards that assure error-free

determinations. This is especially true with respect to the

sensitive choices presented by the administrative decision to

grant parole release.”

Geiken, 28 S.W.3d at 556 (quoting Greenholtz v. Inmates of Nebraska

Penal and Corr. Complex, 442 U.S. 1, 7 (1979)).

It bears repeating—to the extent that Applicant is asking the Court

to review the Board’s substantive determination that he not be released

to parole, that decision is not subject to judicial review. See id.

4 Unlike the restriction on this Court’s authority to review the Board’s decision

to deny release to mandatory supervision, which is statutory, see Tex. Gov’t Code §

508.149(d), this limitation on the propriety of reviewing the Board’s decision to deny

simple parole appears to be the sound creation of the Court.

9

B. To the extent that Applicant is asking this Court to determine

whether § 508.1411 creates a liberty interest, Applicant’s

contention is reviewable by this Court under Article 11.07 as

a matter of first impression.

Applicant is advancing an argument implicating the force and effect

of § 508.1411, which requires the Court to first resolve whether that

statute creates a liberty interest sufficient to maintain an action under

Article 11.07. Like any threshold question regarding a court’s authority

to act, this Court necessarily has authority to first determine whether

Applicant’s claim, as it relates to § 508.1411, can proceed under Article

11.07. But as the Board will establish below, once this decision is made

generally—and assuming the Court agrees that § 508.1411 does not

create a liberty interest—the Court should then hold that Article 11.07

is not available to resolve claims like Applicant’s going forward.

“A threshold determination in any post[-]conviction habeas corpus

application is whether the claim presented is cognizable by way of

collateral attack.” Ex parte McLain, 869 S.W.2d 349, 350 (Tex. Crim.

App. 1994); accord Geiken, 28 S.W.3d at 556 (“The first question we must

consider is whether Article 11.07 is the proper method for presenting

applicant’s claim to this Court”). To this end, the Court has held that

10

under “Article 11.07 . . . post-conviction habeas relief is available for

claims involving jurisdictional defects and violations of fundamental or

constitutional rights.”5 Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim.

App. 2006) (citing Ex parte McCain, 67 S.W.3d 204, 210 (Tex. Crim. App.

2002)).

Applicant is not here suggesting either a jurisdictional defect in his

judgment of conviction or a violation of a “fundamental” right; rather,

Applicant explicitly presses a due process violation. See SHCR at 7–8.

Hence, to determine whether Applicant advances a cognizable Article

11.07 claim, the question becomes whether the Board’s written reasons

denying parole, as required by § 508.1411, implicate the protections of

the Due Process Clause. If they do not—and as the Board will establish

below, they cannot—then Applicant’s claims are not cognizable, whether

or not he makes them with reference to the Due Process Clause.

A procedural due process analysis is two-tiered. The

reviewing court must determine whether a protected liberty

or property interest exists and, if so, decide whether sufficient

procedural safeguards are employed to assure the deprivation

of that interest is not arbitrary. The interest at issue must

5 Under the Court’s precedent, whether Article 11.07 is “available” to advance

a post-conviction claim, appears to involve only the cognizability of that claim, and

not a limitation on the Court’s jurisdiction to otherwise entertain that claim.

11

amount to more than a “unilateral hope.” [R]ather the

claimant must show an entitlement. A liberty interest may

arise from either the due process clause itself or from state

statutes. In Greenholtz v. Nebraska Penal Inmates, 442 U.S.

1 (1979), the Supreme Court acknowledged that even though

the due process clause itself does not embody a right to release

on parole, a state statute could create an entitlement to

release on parole.

Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim. App. 1995)

(citations omitted). Hence, the first question becomes whether § 508.1411

creates a liberty interest necessary to obtain the protections of the Due

Process Clause.

C. The language of § 508.1411 does not create a liberty interest

in parole.

“The Supreme Court has determined that a liberty interest is

created when state statutes use such mandatory language.” Geiken, 28

S.W.3d at 558 (citing Greenholtz, 442 U.S. at 11–12). “A statute will

create an expectation or entitlement if it places ‘substantive limitations

on official discretion’ to deny the particular interest.” Montgomery, 894

S.W.2d at 327 (quoting Kentucky Dep’t Corr. v. Thompson, 490 U.S. 454,

462 (1989)). “Explicitly mandatory language i.e., specific directives to the

decisionmaker that if the regulations’ substantive predicates are present,

12

a particular outcome must follow will create a liberty interest.” Id. at

327–28 (internal quotations omitted). For example, “mandatory language

stating that a prisoner shall be released on parole unless certain

enumerated factors are found to be present was held to create a

presumption and, therefore, an expectation of release.” Id. at 328 (citing

Board of Pardons v. Allen, 482 U.S. 369 (1987)).

“On the other hand, unfettered discretion shown by an absence of

standards or mandatory prerequisites does not give rise to an

entitlement.” Id. (emphasis added) (citing Connecticut Bd. Pardons v.

Dumschat, 452 U.S. 458, 466 (1981)). The preceding limitation bears

repeating— if the relevant statute does not create a liberty interest, then

the Due Process Clause in not implicated. Id.; see Geiken, 28 S.W.3d at

558 (where a statute does not create a liberty interest “then no procedural

due process safeguards are required.”). And absent a due process

violation, Applicant cannot obtain an Article 11.07 remedy because such

a claim would not be cognizable.

Indeed, this Court already determined that Texas’s simple parole

statutes—the ones applied here to deny Applicant release—do not create

13

a mandatory presumption in favor of release under the auspices of either

Greenholtz or Allen. “[A]n inmate does not have a statutorily vested

liberty interest in being released on parole.” Ex parte Retzlaff, 135

S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Geiken, 28 S.W.3d at 558);

see also Geiken, 28 S.W.3d at 558 (“Unlike parole, which requires that

the Board vote in favor of release, the mandatory supervision statute

requires that the offender be released absent Board action to the

contrary”); id. (“[T]he parole system in Texas creates no such

presumption”). And again, since the Texas parole statute does not create

a liberty interest in parole, the Due Process Clause finds no application

to the Board process in denying parole. See Geiken, 28 S.W.3d at 558

(where a statute does not create a liberty interest “then no procedural

due process safeguards are required”).

The question then becomes whether the enactment of § 508.1411

somehow changed the Court’s legal resolution in Geiken, and created a

mandatory presumption in favor of release where there was none

before—it did not. The statute reads:

(a) For each decision of a parole panel granting or denying

the release of an inmate on parole, or denying the

14

release of an inmate on mandatory supervision, the

parole panel shall:

(1) produce a written statement, in clear and

understandable language, that explains:

(A) the decision; and

(B) the reasons for the decision only to the extent

those reasons relate specifically to the

inmate;

(2) provide a copy of the statement to the inmate; and

(3) place a copy of the statement in the inmate’s file.

(b) In a written statement produced under Subsection (a),

the parole panel may withhold information that:

(1) is confidential and not subject to public disclosure

under Chapter 552; or

(2) the parole panel considers to possibly jeopardize

the health or safety of any individual.

(c) The board shall keep a copy of each statement produced

under Subsection (a) in a central location.

Tex. Gov’t Code § 508.1411 (West 2014) (emphasis added). The single

“mandatory” word in the statute directs the Board to provide its rationale

after it has already denied release to parole. See id. Section 508.1411,

however, places no limits on the Board’s discretion to grant or to deny

parole and it does not suggest that a particular liberty-based outcome

must follow where the Board fails to provide a reason. As a result, it does

not create a free-standing liberty interest, which means that Applicant’s

legal complaints regarding the Board’s notice are not cognizable.

15

D. Where, as here, no liberty interest is implicated by statute,

and hence, no due-process rights are created by statute, a

prisoner is not entitled to a written statement of the reasons

for denial of parole.

The specificity demanded by Applicant is not called for by statute,

nor is it required by due process. In analyzing parole procedures which,

like the Board’s, are not grounded in a protectable liberty interest, the

Supreme Court has explained:

[T]here simply is no constitutional guarantee that all

executive decisionmaking must comply with standards that

assure error-free determinations. This is especially true with

respect to the sensitive choices presented by the

administrative decision to grant parole release.

Greenholtz, 442 U.S. at 7 (citations omitted). And because the Board is

given such broad discretion in determining whether to grant or deny

parole,6 due process does not require that an inmate be given a reason for

the Board’s decision to deny parole. See e.g., Peck v. Battey, 721 F.2d

6 Indeed the Board is given complete authority to write its own rules and

policies regarding its decision to grant or deny parole, and can change those

guidelines on its own discretion. See Tex. Gov’t Code § 508.144 (West 2015). The

single substantive “requirement” is that the Board “ensure that the guidelines

require consideration of an inmate’s progress in any programs in which the inmate

participated during the inmate’s term of confinement.” See Tex. Gov’t Code §

508.144(a)(3). Importantly, however, this requirement does not actually place a

substantive limitation on the Board’s official discretion to deny parole. See

Montgomery, 894 S.W.2d at 327.

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1157, 1159 (8th Cir. 1983) (because the applicable statutes did not

require the granting of commutation or parole upon a set criteria, the

inmate did not have “a statutorily created expectation” of early release,

and was therefore not entitled to written reasons for denial); Fabries v.

U.S. Bd. of Parole, 484 F.2d 948, 949 (7th Cir. 1973) (where board is given

a broad range of discretion in determining whether to grant or deny an

application for parole, “a prisoner need not be . . . provided with a

statement of reasons for the Board’s actions”). As the Supreme Court

explained:

[W]e find nothing in the due process concepts . . . that requires

the Parole Board to specify the particular “evidence” in the

inmate’s file or at his interview on which it rests the

discretionary determination that an inmate is not ready for

conditional release. The Board communicates the reason for

its denial as a guide to the inmate for his future behavior. To

require the parole authority to provide a summary of the

evidence would tend to convert the process into an adversary

proceeding and to equate the Board’s parole-release

determination with a guilt determination.

Greenholtz, 442 U.S. at 15–16 (citations omitted). Hence, under the

Texas parole scheme, due process does not require that the Board provide

Applicant with any reasons in support of its decision to deny parole—let

alone constitutionally “adequate” ones.

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E. Since Applicant’s claims do not implicate due process

protections, they do not advance a cognizable basis for habeas

relief, and Article 11.07 is not available going forward to

challenge the written reasons of the Board to deny simple

parole.

The Court should not permit inmates like Applicant to convert the

Board’s determination to deny parole into a judicially mediated,

adversarial proceeding to test the legal “acceptability” of the denial

reasons. Due process does not require such an outcome, and nothing in

the text of the statute suggests the Legislature intended one.

This is not to say that Applicant is without a legal remedy to correct

hypothetical Board-errors in its written notice denying parole. Board

rules give inmates access to a procedure to seek special review after a

denial of parole, where such a request is premised upon “an allegation

that the parole panel has committed an error of law or board rule.” 37

Tex. Admin. Code § 145.17. Indeed, in similar contexts the Court has

found that the availability of an analogous form of administrative review

is more than adequate to justify the unavailability of judicial review in

habeas. See Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App. 1988)

(noting that the Court has previously refused to consider matters such as

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loss of good time credit, disciplinary proceedings and inmate

classification by way of a writ of habeas corpus, especially where

administrative procedures exist to correct errors).

II. Because § 508.1411 Does Not Create an Independent, Freestanding

Liberty Interest, a Prisoner Is Not Constitutionally Entitled to a

Written Statement of the Reasons for Denial of Parole; Hence,

There Can Be No Due Process Violation Whether or Not the Board’s

Reasons for That Denial Comport With § 508.1411.

The Court next asks the Board to consider the following—assuming

arguendo the availability of Article 11.07 to advance Applicant’s claim,

whether § 508.1411 implicates due process and, moreover, whether the

written denial notice provided by the Board satisfies due process. For the

reasons established, supra, the Board’s decision to deny simple parole

does not impute a cognizable interest under the Due Process Clause and

§ 508.1411 did nothing to change this. So, too, as established, supra, the

Board’s written notice of the reasons for denying parole can never

implicate due process under the present, Texas statutory scheme.

And because the Board’s written reason for denying parole does not

implicate the protections of the Due Process Clause—irrespective of the

requirements of § 508.1411—Applicant fails to advance a cognizable

19

claim under Article 11.07. The Court should therefore deny Applicant’s

application as being non-cognizable, to give guidance to the lower courts

in resolving this kind of claim going forward.

III. An Application for a Writ of Mandamus Is Not the Proper Remedy

for Applicant’s Claim.

A. The Court does not have jurisdiction to issue the writ of

mandamus in this circumstance.

“‘For a court to act, it must have jurisdiction to do so. This is

fundamental.’” State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 482 (Tex.

Crim. App. 1985) (quoting State v. Klein, 154 Tex. Crim. 31, 224 S.W.2d

250 (Tex. Crim. App. 1949)). The Court has original jurisdiction over

state habeas applications. See Ex parte Davis, 947 S.W.2d 216, 219 (Tex.

Crim. App. 1997) (recognizing this Court’s “constitutional powers over

the writ of habeas corpus”).

In cases not involving habeas corpus, the scope of the Court’s

jurisdiction is defined by the Texas legislature. See Ex parte Golden, 991

S.W.2d 859, 861 (Tex. Crim. App. 1999) (“The Legislature may define,

expand, or limit this Court’s original writ jurisdiction.”). Article 4.04 of

the Texas Code of Criminal Procedure grants each member of this Court,

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[T]he power and authority to grant and issue and cause the

issuance of writs of habeas corpus, and, in criminal law

matters, the writs of mandamus, procedendo, prohibition, and

certiorari. The court and each judge thereof shall have, and is

hereby given, the power and authority to grant and issue and

cause the issuance of such other writs as may be necessary to

protect its jurisdiction or enforce its judgments.

Tex. Code Crim. Proc. art. 4.04, § 1 (West 2014). Article 4.04 also provides

that this Court shall have appellate jurisdiction coextensive with the

limits of Texas in all criminal cases. Id. § 2. This Court, then, may issue

writs of mandamus to enforce its original jurisdiction to issue writs of

habeas corpus or the Court’s appellate jurisdiction in criminal law

matters.

Undoubtedly, this Court has jurisdiction to issue writs of

mandamus in “criminal law matters.” See Smith v. Flack, 728 S.W.2d

784, 788 (Tex. Crim. App. 1987); see Dickens v. Court of Appeals, 727

S.W.2d 542, 546 (Tex. Crim. App. 1987); State ex rel. Wade v. Mays, 689

S.W.2d 893, 897 (Tex. Crim. App. 1985). No such jurisdiction appears to

exist, however, where mandamus is directed at an executive agency like

the Board:

Only the supreme court has the authority to issue a writ

of mandamus or injunction, or any other mandatory or

21

compulsory writ or process, against any of the officers of the

executive departments of the government of this state to order

or compel the performance of a judicial, ministerial, or

discretionary act or duty that, by state law, the officer or

officers are authorized to perform.

Tex. Gov’t Code § 22.002(c) (West 2014). So, too, with one exception, the

Board has been unable to locate any cases in which the Court maintained

jurisdiction to issue a writ of mandamus against a non-judicial officer.

See Flack, 728 S.W.2d at 789. But Flack is distinguishable because the

Court there issued mandamus to enforce a pre-existing court order

directed to county officials. See id. at 788–89.

To the extent that Applicant might argue that the Court has

continuing jurisdiction to issue a writ of mandamus pursuant to this

pending Article 11.07 application, under the Court’s precedent his habeas

application is not a cognizable vehicle to invoke the Court’s jurisdiction

to do anything. Consequently, there can be no court order or mandate to

enforce. This is not to say that the Board is unmindful of its obligation to

comport with the spirit and text of § 508.1411—in Applicant’s case and

others. And moreover, the Board will plainly follow its own rules when

considering “an allegation that the parole panel has committed an error

22

of law or board rule” with regard to the Board’s written reason for

denying parole. See 37 Tex. Admin. Code § 145.17.

In short, because mandamus would be directed against non-judicial

state actors, and because Applicant’s Article 11.07 application is not

cognizable, Applicant cannot invoke this Court’s original or continuing

mandamus jurisdiction.

B. Alternatively, mandamus is wholly inappropriate; Applicant

has an adequate remedy at law.

Alternatively, an original writ of mandamus is wholly

inappropriate to provide the specific remedy that Applicant seeks. To be

entitled to a writ of mandamus, Applicant must show that (1) the act

sought to be compelled is ministerial and non-discretionary, and (2) he

has no adequate remedy at law. See Braxton v. Dunn, 803 S.W.2d 318,

320 (Tex. Crim. App. 1991). Assuming, arguendo, that § 22.002(c) does

not foreclose the Court’s jurisdiction to issue a writ of mandamus directed

at a non-judicial officer, mandamus is not available here.

First, an act is ministerial only “if it constitutes a duty clearly fixed

and required by law.” Flack, 728 S.W.2d at 789 (quoting State ex rel.

Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (op. on reh’g)).

23

Further, an act is ministerial only if it can be “accomplished without the

exercise of discretion or judgment.” Id. The only action by the Board

which might qualify as “ministerial” under § 508.1411 is the act of

providing an inmate with a written reason for denying parole. But this

already happened. The reasons themselves—which Applicant explicitly

deems inadequate—are merely a reflection of the Board’s discretion to

deny parole. Therefore, an order directing the Board to justify or re-issue

its discretionary reasons to deny parole fail any conceivable legal

measure of “ministerial” and cannot support the Court’s authority to

issue a writ of mandamus.

Second, Applicant has an available remedy that is more than

adequate to protect the narrow statutory right created in § 508.1411. See

37 Tex. Admin. Code § 145.17; see also Geiken, 28 S.W.3d at 556 (holding

that the judicial process is not always available to ensure error-free

decision making by the executive, at least with respect to non-

constitutional “rights”). To be sure, the Court has held that even where

an adequate remedy exists, mandamus may be proper where the

alternative remedial process is “uncertain, tedious, burdensome, slow,

24

inconvenient, inappropriate or ineffective as to be deemed inadequate.”

Flack, 728 S.W.2d at 792. Nothing in this record, however, suggests such

a view.

25

PRAYER FOR RELIEF

For the foregoing reasons, the State respectfully requests that this

Court deny Applicant’s Article 11.07 application and hold that such a

challenge is not cognizable under either habeas or mandamus processes.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

/s/ Joseph P. Corcoran

JOSEPH P. CORCORAN*

*Lead Counsel Assistant Attorney General

Supervising Attorney

for Non-Capital Appeals

Criminal Appeals Division

State Bar No. 00793549

Joseph.Corcoran@TexasAttorneyGeneral.gov

P. O. Box 12548, Capitol Station

Austin, Texas 78711

Tel.: (512) 936-1400

Fax: (512) 936-1280

ATTORNEYS FOR THE TEXAS

BOARD OF PARDONS AND PAROLE

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CERTIFICATE OF SERVICE

Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate

Procedure, I do hereby certify that if the email address of attorneys

designated below is on file with the electronic filing manager, a true and

correct copy of the foregoing notice was served electronically by that

electronic filing manager, on the following attorneys via electronic mail:

Alfredo Morales, Jr.

Attorney for Applicant

Glenn Devino

Attorney for the State

Moreover, I do hereby certify that if the email addresses for the

designated attorneys are not on file with the electronic filing manager, a

true and correct copy of the foregoing pleading was served by placing

same in the United States Mail, postage prepaid, on this the 13th day of

March, 2015, addressed to:

Alfredo Morales, Jr.

700 S. 25 1/2 St. E.

Mcallen, TX 78501

Glenn Devino

Assistant District Attorney

100 N. Closer

Edinburg, Texas 78539

27

/s/ Joseph P. Corcoran

JOSEPH P. CORCORAN

Assistant Attorney General

CERTIFICATE OF COMPLIANCE WITH

TEXAS RULE OF APPELLATE PROCEDURE 73.1(f)

This brief complies with Tex. R. App. Proc. 73.3 in that it contains

6,478 words, as calculated pursuant to Tex. R. App. Proc. 73.1(d), in

Microsoft Word 2013, Century, 14 points.

/s/ Joseph P. Corcoran

JOSEPH P. CORCORAN

Assistant Attorney General

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