              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                                 NO. AP-75,933



               EX PARTE FRANK GARCIA HERNANDEZ, JR., Applicant



                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               IN CAUSE NO. 22048-02-A IN THE 47 TH DISTRICT COURT
                                POTTER COUNTY



       J OHNSON, J., filed a dissenting opinion in which P RICE, J., joined.


                                  DISSENTING OPINION

       The bone of contention in this case is the meaning of “is serving a sentence for.”1 The

majority holds that the phrase includes the sentence for a new conviction that occurred after release

on parole or mandatory supervision and before revocation of that release. Indeed, the offense on

which the new conviction is based is frequently the reason for the revocation. I would hold that the

phrase refers only to the sentence on which the applicant is seeking street-time credit.

       In 2005, we decided Ex parte Keller, 173 S.W.3d 492 (Tex. Crim. App. 2005). In that case,



       1
           There is no dispute that the ineligible offense is not a “previous conviction.”
                                                                                                                        2

Keller sought street-time credit on a 1992 burglary conviction. In 1993, while on parole on that

sentence, he committed indecency with a child, but he was not convicted of that offense until 1997.

His sentence of two years’ imprisonment on that charge had already been fully served at the time of

sentencing. We held that, when Keller’s release on the burglary charge was revoked in 2004, “he

was not serving a sentence for” one of the offenses listed in TEX . GOV ’T CODE § 508.149(a)–the

sentence for the listed offense was fully discharged–and that the offense that was listed, indecency

with a child, was not a “previous” one, as it had been committed after the date of the burglary

sentencing.2

         According to our holding in Boykin v, State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991),

         When we interpret statutes . . ., we seek to effectuate the “collective” intent or
         purpose of the legislators who enacted the legislation. Camacho v. State, 765 S.W.2d
         431 (Tex.Cr.App 1989). . . .

         When attempting to discern this collective legislative intent or purpose, we
         necessarily focus our attention on the literal text of the statute in question and attempt
         to discern the fair, objective meaning of that text at the time of its enactment. . . .
         There really is no other certain method for determining the collective legislative
         intent or purpose at some point in the past, even assuming a single intent or purpose
         was dominant at the time of enactment. . . .

         Thus, if the meaning of the statutory text, when read using the established canons of
         construction relating to such text, should have been plain to the legislators who voted
         on it, we ordinarily give effect to that plain meaning. Smith v. State, 789 S.W.2d 590,
         592 (Tex.Cr.App. 1990). “Where the statute is clear and unambiguous, the
         Legislature must be understood to mean what it has expressed, and it is not for the
         courts to add or subtract from such a statute.” Coit v. State, 808 S.W.2d 473, 475
         (Tex.Cr.App. 1991)(quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Cr.App.


         2
           In a 2007 per curiam order, Ex parte Foster, W R-36,343-02 & -03 (Tex. Crim. App. May 9, 2007)(per
curiam)(not designated for publication), the Court considered a case very similar to the instant case and reached the
same conclusion, but this Court has stated many times that unpublished cases, such as Ex parte Foster, lack
precedential value and thus it cannot be relied upon as the basis for today’s ruling. See, e.g. Holmes v. State, 248
S.W .3d 194 (Tex. Crim. App. 2008); Ex parte Hood, 211 S.W .3d 767 (Tex. Crim. App. 2007).
                                                                                             3

        1967)).

        There is, of course, a legitimate exception to this plain meaning rule: “where
        application of a statute’s plain language would lead to absurd consequences that the
        Legislature could not possibly have intended, we should not apply the language
        literally.” Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App. 1980). When used in the
        proper manner, this narrow exception to the plain meaning rule does not intrude on
        the lawmaking powers of the legislative branch, but rather demonstrates respect for
        that branch, which we assume would not act in an absurd way.

Id. We noted in a footnote that “the canons of construction are no more than rules of logic for the

interpretation of texts.” Id. at n.3.

        The statute disallows street-time credit “if the inmate is serving a sentence for or has been

previously convicted of” one of the offenses listed in section 508.149. Clearly, the legislature

desired to award non-custodial time credit only to parolees who, when released on mandatory

supervision, have convictions for only non-violent offenses. In this context, “has been previously

convicted of” is clear and unambiguous: at some time before the inmate committed the offense for

which he is currently incarcerated, he was convicted of one of the listed offenses. On the other

hand, “is serving a sentence for” is susceptible to at least two interpretations, and it seems to me to

apply only to the sentence on which the inmate is seeking street-time credit. To interpret it otherwise

allows, even encourages, the Board of Pardons and Paroles (the Board) to engage in inappropriate

gamesmanship–delay revocation of supervision for a unlisted offense that meets the midpoint

requirement of § 508.283(c) until there is a new conviction on a listed offense, then deny street-time

credit because the inmate “is serving a sentence for” a listed offense.

        In Morrissey v. Brewer, 408 U.S. 471, 475 (1972), the Supreme Court held that due
        process requires that a preliminary hearing be held “as promptly as convenient” after
        a parolee has been arrested to “determine whether there is probable cause or
        reasonable ground to believe that the arrested parolee has committed the acts that
        would constitute a violation of parole conditions.”
                                                                                                   4

Ex parte Cordova, 235 S.W.2d 735, 735 (Tex. Crim. App. 2007).

       TEX . GOV ’T CODE § 508.281(a) states that

         [a] releasee . . . is entitled to a hearing before a parole panel . . . within a period that
         permits a parole panel . . . to dispose of the charges withe the periods established by
         Sections 508.282(a) and (b) if the releasee . . . (1) is accused of a violation of the
         releasee’s parole or mandatory supervision . . . on information and complaint by a
         peace officer or parole officer.

       TEX . GOV ’T CODE § 508.2811, states that

         [a] parole panel . . . shall provide within a reasonable time to an inmate or person
         described by Section 508.281(a) a preliminary hearing to determine whether probable
         cause or reasonable grounds exist to believe that the inmate or person has committed
         an act that would constitute a violation of a condition of release, unless the inmate
         or person:
                 (1) waives the preliminary hearing; or
                 (2) after release:
                    (A) has been charged only with an administrative violation of a condition
                 of release; or
                    (B) has been adjudicated guilty of or has pleaded guilty or nolo contendere
                 to an offense committed after release, other than an offense punishable by
                 fine only involving the operation of a motor vehicle, regardless of whether
                 the court has deferred disposition of the case, imposed a sentence in the case,
                 or placed the inmate or person on community supervision.

       In this case, applicant was not “a person described by Section 508.149(a)” when he was released

on mandatory supervision for unauthorized use of a motor vehicle. He served three years, ten and one-

half months, then was released on mandatory supervision. Seventeen years and six months later, he was

arrested for robbery, a listed offense. In August 2004, when appellant was arrested on the revocation

warrant that alleged commission of the robbery, he was still not “a person described by Section

508.149,” although charged with a listed offense. If the Board had acted on that revocation motion by

holding a hearing “as promptly as convenient” or even within 120 days, applicant would still not have

been “a person described by Section 508.149(a)” and would have received street-time credit. The

Board, however, waited almost 150 days–until the new charge had resulted in a conviction for a listed
                                                                                                            5

offense and a new sentence of five years–then revoked applicant and denied him street-time credit on

the revoked mandatory supervision on the basis that he was, at the time of revocation, “a person

described by Section 508.149(a),” an inmate who “is serving a sentence for” a listed offense.

        This strikes me as gamesmanship, and perhaps, a violation of the spirit of § 508.283, in which

the calculation of the time remaining on the sentence in which street-time credit is sought is based on

the date on which the revocation warrant was issued, not when the alleged violation is found to be true.

In this case, the Board’s position–that “eligibility for street-time credit should depend strictly upon

whether the person is one ‘described by Section 508.149(a)’ at the time they are revoked,”3 rather than

on the inmate’s status on the date on which the revocation warrant issued–also has a financial impact

on the state. If applicant had been granted the street-time that I interpret the statute to grant, the 1983

sentence would have been discharged in 2008, and when the sentence for the robbery discharges in

August 2009, he would be released. Instead, when the robbery sentence expires, applicant will be

confined, at public expense, for an additional 16 years, on an unlisted offense.

        I would interpret the statute as directing us to look to only the sentence on which time credit is

sought and ask if that sentence is for a listed offense or if the inmate has a conviction for a listed offense

that predates the sentence on which street-time credit is sought. If the answer to each inquiry is no, then

the inmate is not a person who is “serving as sentence for or has been previously convicted of” a listed

offense nor “a person described by Section 508.149(a),” thus § 508.283(c) applies. Because the Court

does not interpret the statute in that way, I respectfully dissent.


Filed: January 28, 2009
Publish


          3
              Ex parte Keller, 173 S.W.3d 492, 497 (Tex. Crim. App. 2005).
