            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 47TH DISTRICT COURT
                              POTTER COUNTY

      K ELLER, P.J., delivered the opinion of the Court in which W OMACK, K EASLER,
H ERVEY, H OLCOMB and C OCHRAN, JJ., joined. KEASLER , J., filed a concurring opinion.
JOHNSON , J., filed a dissenting opinion in which PRICE, J., joined. MEYERS, J. dissented.


       We filed and set this habeas application to determine whether a person released on parole or

mandatory supervision is entitled to credit for “street time” on his original sentence under Texas

Government Code §508.283(c) if, after release but before revocation, he begins serving a sentence

on a new conviction for an offense that is described by Texas Government Code §508.149(a). We

conclude that such a person is not entitled to the §508.283(c) time credit.

                                        I. BACKGROUND

       In 1983, applicant was convicted of the offense of unauthorized use of a motor vehicle
                                                                                HERNANDEZ — 2

(UUMV) and sentenced to twenty-five years of imprisonment. He was released on parole in February

of 1987. On August 26, 2004, applicant committed a robbery. A parole violator warrant for the

UUMV offense issued on August 30. On December 28, applicant was convicted of robbery, and on

January 25, 2005, his parole for the UUMV conviction was revoked. Taking into account credit for

pretrial incarceration, applicant’s “begin date” for the robbery sentence was set at August 27, 2004.

       In an application for a writ of habeas corpus, applicant contended that he was denied credit,

in violation of §508.283, for time spent on parole. We remanded the application to the trial court to

make findings on why applicant was not receiving such credit. The trial court found that, on the date

that applicant’s parole was revoked, he was serving a sentence for, or had been previously convicted

of, an offense listed in §508.149(a) and was therefore not entitled to credit for time spent on early

release. Consequently, the trial court recommended that relief be denied.

       In his brief on submission, applicant continues to argue that he is entitled to credit on his

UUMV sentence for time spent on parole. He first contends that the law in effect on the date that he

was convicted of UUMV determines whether he is an inmate described by §508.149(a), and robbery

was not listed within that section or its predecessor in 1983. In the alternative, applicant contends

that, even if he is currently an inmate described by §508.149(a) because he is “serving a sentence”

for a robbery offense, when the robbery sentence expires, he will no longer be an inmate described

by §508.149(a) and will at that time be entitled to credit for his “street time.”

                                           II. ANALYSIS

       Under §508.283(c), a person is entitled to credit for time served while released to parole or
                                                                                HERNANDEZ — 3

mandatory supervision if he meets two conditions: (1) he is not “a person described by §508.149(a),”1

and (2) on the date that the warrant or summons initiating the revocation process issued, the

remaining portion of his sentence was less than the time he spent on parole.2 It is undisputed that

applicant has met the second condition, so the only question is whether he is “a person described by

§508.149(a).”

       Though §508.283 incorporates §508.149(a) by reference, the most direct function served by

§508.149(a) is to describe persons who are not eligible for mandatory supervision.3 Before 1987, the

only inmates who were categorically excluded from mandatory supervision were those who were

sentenced to death.4 Eligibility for mandatory supervision is determined by the law in effect on the

date that the inmate committed the offense.5 But eligibility under §508.283(c) for credit for time

spent on early release is determined by the law in effect on the date that the releasee’s parole or

mandatory supervision was revoked – including the version of §508.149(a) in effect on the date of

revocation.6 So it is entirely possible for a convicted person to be eligible for mandatory supervision




       1
           T EX . GOV ’T CODE §508.283(b), (c).
       2
           Id., §508.283(c).
       3
           See id., §508.149(a).
       4
         See Ex parte Forward, 258 S.W.3d 151, 153 (Tex. Crim. App. 2008); TEX . CODE CRIM .
PROC. art. 42.18, §8(c)(1985).
       5
           Ex parte Byrd, 162 S.W.3d 250, 252 (Tex. Crim. App. 2005).
       6
           Ex parte Noyola, 215 S.W.3d 862, 866-67 (Tex. Crim. App. 2007).
                                                                                HERNANDEZ — 4

but ineligible for the time credit and vice-versa.7 To determine whether applicant is eligible for the

time credit, then, we must look, not to the law of 1983, when applicant committed the UUMV

offense, but to the law of 2005, when applicant’s parole on the UUMV offense was revoked.

       The relevant portion of §508.149(a) is the same today as the 2005 version, and it provides:

“An inmate may not be released to mandatory supervision if the inmate is serving a sentence for or

has been previously convicted of . . . a second degree felony under Section 29.02, Penal Code.”8 In

Ex parte Keller, we held that the phrase “previously convicted of” refers to a conviction that occurs

before the inmate’s “holding conviction,”9 the “holding conviction” being the one for which the

inmate is serving a sentence. In that case, the inmate was released to parole on a burglary-of-a-vehicle

conviction, and while on parole, committed the offense of indecency with a child, for which he was

convicted.10 Some time after his parole had been revoked and he had served the entirety of his

indecency offense, the inmate was released on mandatory supervision for the burglary offense.11 He

was eligible for the credit for “street time” when his mandatory supervision was revoked because the

indecency conviction occurred after (not before) the burglary conviction.12 Significantly, the Keller




       7
            See Byrd, 162 S.W.3d at 252 (discussing implications of rule later adopted in Noyola).
       8
      T EX . GOV ’T CODE §508.149(a)(11)(emphasis added). We also note that §508.283 was last
amended in 2003, so the 2005 version is identical to the current version of the statute.
       9
            Ex parte Keller, 173 S.W.3d 492, 496 (Tex. Crim. App. 2005).
       10
            Id. at 493.
       11
            Id. at 493, 495.
       12
            Id. at 496.
                                                                                HERNANDEZ — 5

opinion stated, “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 But the indecency conviction could not be the holding conviction because the

sentence had already been discharged, so the inmate was not “serving a sentence” for that conviction.

       In the present case, if the UUMV conviction were viewed as the “holding” conviction, then

applicant’s subsequent robbery conviction could not qualify as a “previous” conviction under Keller

because it occurred after the “holding” conviction. But under Keller, nothing prevents the robbery

conviction from qualifying as a “holding” conviction, because applicant was in fact serving a sentence

for the robbery on the date of his UUMV revocation. Nothing in the language of §508.149(a) requires

that some sort of limitation be read into the phrase “serving a sentence,” and we see no compelling

reason to do so.14 We conclude that, because applicant was serving a sentence for robbery at the time

of his UUMV revocation, he was a person described by §508.149(a).

       All that remains is applicant’s contention that he may later obtain credit for his street time on

the UUMV offense when he completes his robbery sentence. We reject that contention because the




       13
            Id.
       14
            We note that we are obligated to construe a statute in accordance with the plain
meaning of its text unless the plain meaning leads to absurd results that the Legislature could not
have possibly intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). Though
we do not view the plain meaning as producing an absurd result, we note that the legislative
history provides no guidance on the question before us. See H.B. 1585, House Comm. on
Corrections, 77th Leg., R.S. (Mar. 6, 2001) (audio at
http://www.house.state.tx.us./committees/audio77/200.htm beginning at 1:17:25).
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time credit statute focuses on the releasee’s status at the time of revocation.15 The releasee is either

a person described by §508.149(a) at the time of revocation or he is not. His status at the time of

revocation determines whether he gets the time credit.

       We deny relief.

Delivered: January 28, 2009
Publish




       15
         T EX . GOV ’T CODE §508.283(b)(“If the parole, mandatory supervision, or conditional
pardon of a person described by Section 508.149(a) is revoked . . . .”), (c)(“If the parole,
mandatory supervision, or conditional pardon of a person other than a person described by
Section 508.149(a) is revoked . . . .”).
