      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00625-CV



                                     Philip J. Pohl, Appellant

                                                  v.

                                 Brad Livingston et al., Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
    NO. D-1-GN-06-001771, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Philip J. Pohl, proceeding pro se, appeals the trial court’s denial of his

original petition for writ of mandamus requesting that the trial court order appellees Brad Livingston,

Rissie Owens, and Christi Hastings1 to release him from prison due to an allegedly unconstitutional

application of the statute governing his eligibility for release to mandatory supervision. We affirm.

               In 1985, Pohl was sentenced to life in prison following his convictions for aggravated

sexual assault and indecency with a child. In 2006, after serving twenty-one years of his life

sentence, Pohl filed an original petition for writ of mandamus in the trial court requesting the court

to order appellees to release him from prison. In his petition, Pohl argued that the version of article

42.12, section 15 of the code of criminal procedure in effect at the time he committed the offenses


       1
         Brad Livingston is the Executive Director of the Texas Department of Criminal Justice,
and Rissie Owens is the Chair of the Texas Board of Pardons and Paroles. Christi Hastings is the
Supervisor of Parole at the Polunsky Unit, the state prison facility where Pohl is incarcerated.
in 1985 allowed him “to be released to parole or mandatory supervision when I had accumulated

20 years of flat-time on my life sentence.” Pohl requested that the trial court “issue a Writ of

Mandamus to the Respondents commanding them to obey the law and carry out their mandated

ministerial duties and release me . . . to parole or mandatory supervision.” Appellees filed a motion

to dismiss Pohl’s suit under chapter 14 of the civil practice and remedies code, which governs inmate

litigation, including mandamus proceedings. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014

(West 2002); Harrison v. Vance, 34 S.W.3d 660, 662 (Tex. App.—Dallas 2000, no pet.). The trial

court denied Pohl’s petition for writ of mandamus.

                On appeal, Pohl contends that he was entitled to mandamus relief because appellees

have a duty to release him to mandatory supervision under the law in effect at the time he committed

the offenses. A writ of mandamus will issue to compel a public official to perform a ministerial act.

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). An act is ministerial when the

law clearly spells out the duty to be performed by the official with sufficient certainty that nothing

is left to the exercise of discretion. Id. A writ of mandamus will not issue to compel a public official

to perform an act that involves an exercise of discretion. Id.

                Eligibility for release to mandatory supervision is governed by the law in effect

at the time the offense was committed. Ex parte Lindsey, 226 S.W.3d 433, 434 (Tex. Crim. App.

2007). However, the law in effect at the time Pohl committed the offenses in 1985 provided that

an inmate not under a sentence of death “shall be released to mandatory supervision by order of

the Board when the calendar time he has served plus any accrued good conduct time equal

the maximum term to which he was sentenced.” Tex. Code Crim. Proc. Ann. art. 42.12, § 15(c)



                                                   2
(West 1985) (unchanged since 1977). According to the terms of this statute, Pohl was not, as he

contends, eligible for release to mandatory supervision after serving twenty years of his life

sentence.2 Because Pohl is not eligible for release to mandatory supervision under the 1985 version

of article 42.12, section 15, appellees have no duty to release him to mandatory supervision. Pohl

is not entitled to mandamus relief on this claim.

                Appellees also have no duty to release Pohl on parole. “Parole” means the

discretionary and conditional release of an eligible inmate sentenced to the institutional division so

that the inmate may serve the remainder of the inmate’s sentence under the supervision of the

pardons and paroles division. Tex. Gov’t Code Ann. § 508.001(6) (West 2004) (emphasis added).

However, as discussed above, mandamus is only available “when the law clearly spells out the duty

to be performed by the official with sufficient certainty that nothing is left to the exercise of

discretion.” Anderson, 806 S.W.2d at 793. Because appellees exercise discretion in deciding

whether to release an inmate on parole, Pohl is not entitled to a writ of mandamus directing appellees

to release him on parole.




       2
           The Texas Court of Criminal Appeals has noted:

       The government has never released life-sentenced inmates to mandatory supervision.
       During this time the Legislature has amended the mandatory supervision law several
       times without providing for the release of life-sentenced inmates to mandatory
       supervision. The Legislature could easily have done this especially since it has
       expressly provided that some life-sentenced inmates are eligible for discretionary
       parole. All of this indicates that the Legislature does not intend for life-sentenced
       inmates to be eligible for release to mandatory supervision.

Ex parte Franks, 71 S.W.3d 327, 328 n.1 (Tex. Crim. App. 2001) (citations omitted).


                                                    3
               Pohl also contends that the trial court erred by denying his request to personally

appear at the hearing on appellees’ motion to dismiss. It is well established that litigants cannot be

denied access to the courts simply because they are inmates. In the Interest of Z. L. T., 124 S.W.3d

163, 165 (Tex. 2003). However, an inmate does not have an absolute right to appear in person in

every court proceeding. Id. Instead, the inmate’s right of access to the courts must be weighed

against the protection of our correctional system’s integrity. Id. Only when an inmate has been

effectively barred from presenting his case has an appeals court been willing to find error in

the denial of an inmate’s request to personally appear. Thomas v. Bilby, 40 S.W.3d 166, 170

(Tex. App.—Texarkana 2001, no pet.) (citing Pruske v. Dempsey, 821 S.W.2d 687, 688-89

(Tex. App.—San Antonio 1991, no writ); Nichols v. Martin, 776 S.W.2d 621, 623

(Tex. App.—Tyler 1989, no writ)).

               In this case, appellees’ motion to dismiss argued that Pohl was not entitled to

mandamus relief on his claims. That issue was wholly determinable from the record. Therefore,

Pohl did not need to appear at the hearing to effectively present his case, and the trial court did not

err in denying his request to personally appear. See Thomas, 40 S.W.3d at 170.

               Lastly, Pohl contends that the trial court erred when it “halted” discovery in his case.

The record reflects that Pohl attempted to engage in discovery after appellees filed their motion to

dismiss his claims. Appellees objected to Pohl’s discovery requests, but the trial court did not rule

on the objections. Instead, the trial court set a hearing on appellees’ motion to dismiss, which,

according to the terms of section 14.003 of the civil practice and remedies code, automatically

suspended discovery relating to Pohl’s claims pending the hearing. See Tex. Civ. Prac. & Rem.



                                                  4
Code Ann. § 14.003(d) (West 2002). In light of this statutory provision, the trial court did not err

by suspending discovery in this case.

               Affirmed.




                                              __________________________________________

                                              G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: April 10, 2008




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