The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-44,786-06
EX PARTE RICHARD ANTHONY RIVERS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 0710442-D IN THE 178TH DISTRICT COURT
HARRIS COUNTY
MCCLURE, J., delivered the opinion of the Court in which KELLER, P.J.,
and HERVEY, RICHARDSON, NEWELL, KEEL, and WALKER, JJ., joined. YEARY,
J., filed a concurring and dissenting opinion in which SLAUGHTER, J., joined.
OPINION
Is it legal for the Texas Department of Criminal Justice to decline to release an inmate
to mandatory supervision on one sentence until the inmate is eligible for release on all
concurrent sentences? Because Applicant is eligible for mandatory supervision release on
one of his convictions, we grant relief as to that sentence. However, because Applicant is
ineligible for mandatory supervision on his second sentence, he is not entitled to immediate
release as to that sentence.
RIVERS ― 2
I. BACKGROUND
Applicant is serving two sentences that involve Texas’s mandatory supervision statute
in both its automatic and discretionary forms. Prior to 1996, all eligible inmates whose
good time plus actual time in prison equaled the total length of their sentences were
absolutely required to be released on mandatory supervision. See Act of May 23, 1987,
70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754, repealed by Act
of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.22, 1997 Tex. Gen. Laws 327, 443 (current
version at Tex. Gov’t Code Ann. §§ 508.147–508.149). 1 The Parole Board had no
discretion to deny release to an inmate even if the Board was certain he would pose a clear
and present danger to society. See House Comm. Report, Bill Analysis, Tex. H.B. 1433,
74th Leg., R.S. (1995) (amending then Tex. Code Crim. Proc. art. 42.18, § 8(c) and adding
subsection (c-1), now codified at Tex. Gov’t Code § 508.149) (noting “once eligible
inmates reach an average of 48% of their total sentence, the Pardons and Parole Board
has no discretion or decision-making power regarding their release”).
Concerned with this “automatic open-door policy,” the Texas Legislature repealed
the mandatory supervision statute and enacted a policy that provided for some discretion
in the Texas Department of Criminal Justice’s (TDCJ) decision to release an inmate to
mandatory supervision. Act of May 29, 1995, 74th Leg., R.S., ch. 263, 1995 Tex. Gen.
Laws 2592, 2592–93, repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.22,
1
In 1995, an eligible inmate whose actual calendar time plus accrued good conduct time equaled the term
of his sentence was automatically released on mandatory supervision and treated as if he were on parole.
Act of May 23, 1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754 (repealed
1997).
RIVERS ― 3
1997 Tex. Gen. Laws 327, 443 (“H.B. 1433”). Effective September 1, 1996, the revised
statute, now found in the Government Code, states, “an inmate may not be released to
mandatory supervision if a parole panel determines that: (1) the inmate’s accrued good
conduct time is not an accurate reflection of the inmate’s potential for rehabilitation; and
(2) the inmate’s release would endanger the public.” Tex. Gov’t Code Ann. § 508.149(b).
The amendments also contained a saving clause, applying the change in the law to
offenses committed after the effective date of the statutory amendment, while retaining the
prior law for offenses committed before the effective date. See H.B. 1433 at §§ 3 and 4; 2
see also Ex parte Mabry, 137 S.W.3d 58, 59–60 (Tex. Crim. App. 2004) (holding that
“[t]hese 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.”).
In 1995, Applicant committed a burglary of a habitation with intent to commit theft. He
was convicted of that offense in 1997, and punishment was assessed at confinement for
2
The amendments contained in H.B. 1433, which became effective September 1, 1996, contained the
following:
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.
RIVERS ― 4
thirty-five years (“1997 conviction”). Applicant was eligible for mandatory supervision
(MS) on that sentence and remains so because of the savings clause. See Act of May 23,
1987, 70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754 (repealed
1997).
In 2013, while on supervised release for the 1997 conviction, Applicant committed
another burglary of a habitation. He was convicted, and punishment was assessed at ten
years’ confinement (“2013 conviction”). The 2013 conviction was ordered to run
concurrently with the 1997 conviction. The 2013 conviction is subject to the 1996 change
to the supervised release statute in which release to mandatory supervision is no longer
automatic but subject to the discretion of the parole board. See Tex. Gov’t Code Ann. §§
508.0443(a)(1), 508.147(a), 508.149(b).
On January 24, 2020, Applicant was notified that he would be reviewed for
discretionary mandatory release (DMS) on the 2013 conviction. In March 2020, the Board
of Pardons and Paroles decided to deny release on this sentence. The Board again denied
Applicant’s release to DMS in February 2021.
In May 2020, Applicant’s 1997 conviction became eligible for mandatory supervision.
However, the Texas Department of Criminal Justice (TDCJ) notified Applicant that he
would not be released until he became eligible for release on all concurrent sentences.
RIVERS ― 5
II. ARGUMENTS OF THE PARTIES
Applicant alleges that TDCJ is misinterpreting the phrase “eligible for release” to mean
than an inmate must be granted DMS in the 2013 conviction in order to become eligible
for release in his 1997 conviction.
The State disagrees and counters that an inmate should not be released to supervision
on an eligible sentence, even if entitled to immediate release, if concurrently serving a
sentence ineligible for release. The State argues that this is not a denial of release but,
instead, a delay until the inmate is no longer prevented from release on the other sentence.
The State argues this is legal for two reasons. First, a proper reading of the MS statute
shows inmates are entitled to supervised release only on eligible sentences. Otherwise,
according to the State, interpreting the statute to mean immediate release, regardless of the
inmate’s eligibility of release on any other sentences he is currently serving, would lead to
absurd consequences that the Legislature did not intend. Second, the State contends that
Applicant’s interpretation of the statute would violate other statutes, namely, the DMS
statute. The State argues that the DMS statute requires sentence credits before release,
necessitates the parole board’s discretion in approving release, and, in some instances,
simply prohibits release. Immediate release, according to the State, would violate this
statute.
III. ANALYSIS
i. TDCJ has no discretion to deny release.
RIVERS ― 6
As discussed above, prior to the enactment of the discretionary mandatory supervision
release statute, TDCJ had no discretion to deny mandatory release to an inmate. The
mandatory supervision statute speaks in unequivocal language that an eligible inmate
whose actual calendar time plus accrued good conduct time equaled the term of his
sentence is automatically released on mandatory supervision. See Act of May 23, 1987,
70th Leg., R.S., ch. 1101, § 7, sec. 8(c), 1987 Tex. Gen. Laws 3750, 3754 (repealed 1997).
Therefore, in the case of Applicant’s 1997 conviction, there is no discretion in releasing
him at all. It appears that TDCJ’s policy of not “releasing” a prisoner to mandatory
supervision on one concurrent sentence until the prisoner is “eligible for release” on all
concurrent sentences runs afoul of the mandatory supervision statute.
ii. TDCJ has misinterpreted the amendment to the MS statute.
Applicant alleges that TDCJ is changing the holding offense in situations where an
inmate is serving an MS-eligible sentence and a DMS-eligible sentence concurrently. As
discussed above, eligibility for mandatory supervision is determined by the statute in effect
when the offender’s “holding offense” is committed. Ex parte Thompson, 173 S.W.3d 458,
459 (Tex. Crim. App. 2005). A “holding offense” is the offense that governs an offender’s
release date. See Ex parte Mabry, 137 S.W.3d 58, 63 (Tex. Crim. App. 2004) (Keasler, J.,
concurring).
In Applicant’s case, TDCJ originally set Applicant’s 1997 conviction as the holding
offense for purposes of calculating Applicant’s MS release date. However, once that date
passed, TDCJ switched Applicant’s holding conviction to the 2013 conviction.
RIVERS ― 7
The State argues that TDCJ’s policy of not releasing inmates to mandatory supervision
until they are eligible to be released on all concurrent sentences is the most appropriate
option: it delays but does not deny release to those who have essentially interfered with
their right to immediate release by their new convictions.
Applicant alleges the holding offense should be static and, in his case, the holding
offense should be his 2013 conviction; otherwise, TDCJ is violating the prohibition against
ex post facto laws. Applicant alleges the current policy allows TDCJ to “turn Applicant’s
MS-eligible sentence into what amounts to be a DMS-eligible sentence.”
An ex post facto violation occurs when a statute changes the punishment and inflicts
greater punishment than the law attached to a criminal offense when committed. Ex parte
Hallmark, 883 S.W.2d 672, 674 (Tex. Crim. App. 1994). Generally, “[o]nly the legislature
can violate either the federal or state Ex Post Facto Clauses because . . . both are ‘directed
at the Legislature, not the courts.’” Ex parte Heilman, 456 S.W. 3d 159, 163 (Tex. Crim.
App. 2015) (quoting Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002)). In assessing
such claim, a court must “look beyond the actor that is directly committing the alleged
violation for some legislative origin of the alleged violation…” Heilman, 456 S.W.3d at
165. Here, Applicant is not alleging that the statute violates the prohibition against ex post
facto laws but that TDCJ’s application of the statute violates the ex post facto clause. Since
Applicant does not allege the Legislature violated the clause in the enactment of the statute,
we decline to extend an ex post facto violation to TDCJ for exercising their policy to release
inmates to mandatory supervision.
RIVERS ― 8
This argument notwithstanding, is TDCJ’s policy of “delaying” release legal? This
question was answered, in part, in 2008, when the Court was confronted with how
mandatory supervision issues are resolved when a prisoner is serving consecutive
sentences. See Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), and Ex parte
Williams, 257 S.W.3d 711 (Tex. Crim. App. 2008). In these cases, the applicants were
serving sentences for pre-1987 offenses consecutively with sentences for post-1987
offenses. An underlying issue was the same as the present case—TDCJ was not releasing
(or delaying release) on a mandatory supervision sentence until the applicant became
eligible for release on all the sentences. While these cases concerned consecutive rather
than concurrent sentences, this Court, in examining whether an inmate should be on regular
mandatory supervision release on one sentence while remaining in prison on another
consecutive sentence, noted:
Because we have determined that applicant is eligible for mandatory
supervision release on the instant murder sentence, we grant relief as to that
conviction. TDCJ is ordered to classify applicant as eligible for mandatory
supervision release on this twenty-five-year sentence for his murder
conviction. However, TDCJ shall calculate his time for [his consecutive
DMS] sentence and the sentences ordered to be served consecutively
therewith in accordance with our holdings in Forward.
Ex parte Williams, 257 S.W.3d at 712.
This is consistent with what TDCJ is doing in Applicant’s case—because Applicant’s
second sentence is ineligible for MS, TDCJ is delaying MS release on the first sentence
until the entire period of the second sentence has passed.
RIVERS ― 9
In accordance with Forward and Williams, Applicant’s 1997 conviction is the holding
offense for Applicant. Applicant became eligible for MS release in his 1997 conviction on
May 5, 2020. However, TDCJ is not releasing Applicant to mandatory supervision in his
1997 conviction until Applicant is released to DMS on his concurrent conviction. By
denying Applicant release on his mandatory-supervision-eligible holding offense,
Applicant has been punished for the 1997 conviction longer than the law at the time
permitted.
Therefore, Applicant is entitled to immediate release in his 1997 conviction. This will
be a “paper parole”—a designation by TDCJ that Applicant is on mandatory supervision
release on one of his convictions—but is not an actual, physical release of Applicant from
TDCJ custody. We recognize that this is somewhat of a hollow victory for Applicant
considering he will be released on paper on one conviction while still being held in prison
on another conviction. See Ex parte Kuester, 21 S.W.3d 264, 272–73 (Tex. Crim. App.
2000) (noting that, when a prisoner with two consecutive sentences makes parole on one
sentence, it ceases to operate for stacking purposes; though “the inmate is in custody
serving his second sentence, he is ‘paroled’ on his first sentence, continuing to get credit
on it for the time he is in prison.”).
We also recognize that a paper release may become a detriment, should an inmate be
released on a second sentence, have his supervision revoked, and likely forfeit “street time”
from his paper release on the first sentence for time spent in prison. Nonetheless,
RIVERS ― 10
Applicant’s statutory right in release supersedes any potential hypothetical loss in time
credit.
IV. CONCLUSION
In Applicant’s case, TDCJ is not releasing Applicant to mandatory supervision until he
is “eligible for release” on all his sentences. This is an incorrect interpretation of the
amendment to the MS statute. TDCJ is ordered to immediately release Applicant to
mandatory supervision on this thirty-five-year sentence for burglary of a habitation with
intent to commit theft. However, TDCJ shall continue to calculate his time for this sentence
and the sentences ordered to be served concurrently therewith in accordance with our
holdings in Forward. Copies of this opinion shall be sent to TDCJ’s State Classification
Committee—Correctional Institutions Division and its Pardons and Parole Division.
Delivered: May 18, 2022
PUBLISH