                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 11, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                            No. 03-50101
                          Summary Calendar


MICHAEL JOSEPH FUHRMAN,

                                    Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                    Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. P-01-CV-27-F
                        --------------------

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

     Michael Joseph Fuhrman, Texas prisoner # 531212, seeks a

certificate of appealability (COA) to appeal the denial of his 28

U.S.C. § 2254 petition.   He raises several constitutional claims

pertaining to his discipline for refusing to submit a DNA sample

in conformity with TEX. GOV’T CODE ANN. § 411.148 (Vernon Supp.

2003).   The district court found that Fuhrman had not lost good-


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 03-50101
                                -2-

time credits and that he was ineligible for release to mandatory

supervision.

     Furhman, however, provided the district court with several

inmate time slips, which support his contention that he lost

good-time credits in disciplinary proceedings other than

disciplinary case # 20010015552 as a result of his persistent

refusal to give a DNA specimen.   Moreover, Fuhrman provided the

district court with his mandatory supervision release

certificate, rendering debatable the issue whether he is eligible

for release to mandatory supervision.     Texas prisoners eligible

for mandatory release who allege that they were erroneously

denied good-time credit that, if restored, would effect sooner

release from prison may seek relief under 28 U.S.C. § 2254.

Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).     Fuhrman has

met his burden of showing that “that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.”   Slack v. McDaniel, 529 U.S. 473, 484

(2000).

     We therefore grant Fuhrman a COA, vacate the district

court’s judgment, and remand for a definitive finding whether

Fuhrman lost good-time credits in any disciplinary cases other

than # 20010015552 for refusing to submit a DNA specimen.     Should

this be the case, the district court is instructed to order the

Respondent to brief the issues (1) whether Furhman is eligible

for release to mandatory supervision and (2) whether his
                           No. 03-50101
                                -3-

forfeiture of good-time credits contravenes § 411.148(d)’s

provision that “[a]n inmate may not be held past a statutory

release date if the inmate fails or refuses to provide a blood

sample,” and, if so, whether there are constitutional

implications necessitating habeas relief.     COA is denied in all

other respects.

     The district court opined that Fuhrman’s Georgia offense did

not, on its face, support a finding that he was required to

submit to DNA testing, because there was no indication that the

burglary was committed with the intent to commit the felonies

formerly enumerated in § 411.148.   We note, however, that

§ 411.148 was amended in 1999 to delete the provision that had

required DNA eligible burglaries to have been committed with the

intent to commit the crimes enumerated in § 411.148(a)(1).        See

TEX. GOV’T CODE ANN. § 411.148(a)(1), (2) (Vernon Supp. 2003); see

also Act of June 19, 1999, ch. 1368, § 1, 1999 Tex. Legis. Serv.

(amending § 411.148 effective September 1, 1999).      Consequently,

there is no indication that the Georgia offense of burglary of a

habitation was not a DNA eligible offense, given that it involved

conduct punishable under Texas Penal Code § 30.02(c)(2), which

provides that the crime of burglary is a “felony of the second

degree if committed in a habitation.”     TEX. PENAL CODE. ANN.

§ 30.02(c)(2) (Vernon 2003).

     COA GRANTED; VACATED AND REMANDED.
