Concurring Opinion Filed August 1, 2019.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00230-CR
                                       No. 05-18-00231-CR

                           ILONA ELISABETH SCHEEL, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                     Trial Court Cause Nos. F14-76584-W; F14-76585-W

                               CONCURRING OPINION
                                     Opinion by Justice Carlyle
       I join the majority opinion but write separately to note what has been called the “complete

failure” of the state jail system and to urge both the legislature and interested entities to continue

their work to reform it. See House Comm. on Criminal Jurisprudence, Interim Report to the 86th

Legislature (January 2019) (“Bluntly but factually, Texas’s state jail system is such a complete

failure that it’s come to literally produce the opposite of its intended result in every measurable

way. Perhaps the only success state jails have had is reducing prison populations back in the

outmoded days of the ‘tough on crime’ push 25 years ago. Every other component of our criminal

justice system has made big strides since then, though, while state jails remain a relic of the past.

As stakeholders saw in Ohio when it eliminated its intermediate jail system, each state jail closed

would present an opportunity to handle the same offenses in wiser ways and return money to both
state and local government coffers.”). The Texas Criminal Justice Coalition produced a 2018 report

on the state jail system, “A Failure in the Fourth Degree: Reforming the State Jail Felony System

in Texas.”1 The Texas Conservative Coalition Research Institute published a September 2018

policy white paper, “Reforming Texas’s Approach to State Jail Felonies.”2 And the Texas Tribune

has written about the topic. See Catherine Martin, Built with rehabilitation in mind, Texas state

jails are now viewed by lawmakers as a “complete failure,” Texas Tribune, Feb. 14, 2019.3

           Specific to this case, the possibility that a person may serve pretrial detention, sometimes

for many months (and likely because they cannot afford to make bail, another problem entirely),

and then not receive credit for that time served presents an abnormality in our system. See TEX.

CODE CRIM. PROC. art. 42A.559(c); cf. id. art. 42.03 (requiring judges to give credit for time served

between arrest and sentencing “[i]n all criminal cases”). This abnormality, once replete with solid

policy backing, may find itself an outlier without a foundation due to the alleged structural failure

of the state jail system. Or, a functioning, funded state jail scheme may remain part of an alternative

to mass, long-term incarceration. We await the case with proper objection to consider this thorny

issue.




                                                             /Cory L. Carlyle/
                                                             CORY L. CARLYLE
                                                             JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2
180230CF.U05


    1
        Available at
https://www.texascjc.org/system/files/publications/A%20Failure%20in%20the%20Fourth%20Degree%20Report.pd
f.
    2
        Available at https://txccri.org/wp-content/uploads/2018/09/TCCRI-State-Jail-Felony-Reform-White-Paper.pdf.
    3
        Available at https://www.texastribune.org/2019/02/14/texas-legislature-eyes-state-jail-reform-2019/.
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