               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                                 NO. AP-75,705



                     EX PARTE JOHN PATRICK FORWARD, Applicant



                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 46706(2) IN THE 252 nd JUDICIAL DISTRICT COURT
                           FROM JEFFERSON COUNTY

        J OHNSON, J., filed a dissenting opinion in which M EYERS, P RICE, and H OLCOMB,
JJ., joined.

                                   DISSENTING OPINION


         Effective September 1, 1987, the legislature amended the method of calculating release dates

for inmates who are serving consecutive sentences.1 Before that amendment, consecutive sentences

         1
              It is well settled that an inmate’s eligibility for mandatory supervision is controlled by the mandatory-
supervision statute in effect on the date of the commission of the offense for which the inmate is incarcerated. Ex
parte Noyola, 215 S.W .3d 862, 865 (Tex. Crim. App. 2007); Ex parte Thompson, 173 S.W .3d 458, 459 (Tex. Crim.
App. 2005); Ex parte Hall, 995 S.W.2d 151, 152 (Tex. Crim. App. 1999). At the time applicant committed the
aggravated robbery in 1986, Article 6181-1, § 1(4), V.T.C.A., Civil Statutes, provided that, when two or more
sentences are to be served consecutively, the aggregate of the several terms shall be considered the term. In 1987,
that statute was amended to delete that provision and replace it with language referring to the newly added language
of T EX . C O D E C RIM . P RO C ., Article 42.18, § 8(b): TDCJ–SCC (referred to as the Texas Board of Corrections) may
not treat consecutive sentences as a single sentence for purposes of parole. See Acts 1987, 70 th Leg., ch. 384, §§ 2
and 5, eff. Sept. 1, 1987. Article 6181-1 was repealed in 1989 (see Acts 1989, 71 st Leg., ch. 212, § 3.03, eff. Sept. 1,
1989), although that same legislature also amended the statute without acknowledging the repeal (see Acts 1989, 71 st
Leg., ch. 1229, § 1, eff. Aug. 28, 1989, and Acts 1989, 71 st Leg., ch. 785, § 4.18, eff. June 15, 1989). The provision
                                                                                                                                2

were aggregated and treated as a single sentence equal to the sum of the consecutive sentences. After

the amendment, sentences were no longer aggregated, and an inmate who is serving consecutive

sentences is not now eligible for mandatory supervision on any but the last of the consecutive

sentences. Ex parte Ruthart, 980 S.W.2d 469, 473 (Tex. Crim. App. 1998).

          In that amendment, the legislature included a saving clause that provided that this change

applied “to a prisoner sentenced to serve consecutive sentences [only] if each sentence in the series

is for an offense committed on or after [September 1, 1987].” If any sentence in the series was for

an offense committed before September 1, 1987, “the prisoner’s eligibility for parole is covered by

the law in effect when that offense was committed, and the former law is continued in effect for that

purpose.” Appellant’s older conviction occurred before the effective date, and his later conviction

occurred after it. We therefore are instructed by the legislature that the two consecutive sentences

are to be treated as a single eighteen-year sentence.

          Calculation of the mandatory-release date might thus be a simple thing, except that the same

legislature proscribed release on mandatory supervision on or after September 1, 1987, of a prisoner

who had been convicted of certain enumerated offenses. Such inmates must serve their sentences

day-for-day unless they are paroled. Appellant’s first conviction did not disqualify him for release

on mandatory supervision at the time he committed the offense, but it now disqualifies him for

mandatory supervision on his later conviction. Neither of the 1987 amendments specified how to

calculate mandatory-release dates when an ineligible post-1987 offense is to be served consecutively



was repealed again in 1991. See 72 nd Leg., ch. 16, § 10.01(b), eff. Aug. 26, 1991. The current version of § 508.149
excludes from release to mandatory supervision inmates who have previously been convicted of a variety of
enumerated offenses, including aggravated robbery. T EX . G OVT . C O D E §§ 508.147, 508.149.
         The legislature continues to prohibit treating consecutive sentences as a single sentence for purposes of
parole. T EX . G OVT . C O D E § 508.150 (the current codification of T EX . C O D E C RIM . P RO C ., Article 42.18, § 8(d)(3)).
                                                                                                     3

to an eligible pre-1987 offense.

        Four methods of computation are possible.

        1. The sentences are added together and treated as a single sentence that is eligible for

mandatory supervision. This method conforms to the legislative instruction that the former law–as

to both aggregation and eligibility for release on mandatory supervision–continues in effect, but it

appears to violate the provision of the 1987 amendments that restricts eligibility for release for some

offenses.

        2. The sentences are added together and treated as a single sentence that is not eligible for

mandatory supervision. This method violates ex post facto protections by retroactively making

appellant’s eligible first conviction ineligible.

        3. The mandatory-supervision release date is calculated separately for each sentence. This

method violates the provision of the saving clause that the sentences be aggregated into a single

sentence, the length of which is the sum of the sentences.2

        4. Because appellant’s eight-year sentence, if considered alone, has discharged, the new

version of § 508.147 applies. This comports with the interpretation apparently favored by TDCJ,

but, like method 3, it violates the language of the saving clause.

        No plain-language reading of the relevant statutes resolves these conflicts or indicates a

legislative intent to apply one of these methods. A review of the audio tapes of the legislative

committees that considered the 1987 amendments reveals that a situation such as the one presented

here was never discussed. Ex parte Ruthart, 980 S.W.2d at 469; Ex parte Choice, 828 S.W.2d 5

(Tex. Crim. App. 1992). None of our usual methods of statutory construction enable us to ascertain


        2
            This is the method that appears to be the choice of TDCJ-SCC.
                                                                                                               4

legislative intent as to this situation, and it appears that the conflicts in this situation can be resolved

only by the legislature.

        When legislative intent cannot be determined using the usual methods, the United States

Supreme Court has for many years applied a doctrine commonly referred to as the Rule of Lenity.

See, e.g., Ladner v. United States, 358 U.S. 169, 178 (1958)(“When Congress leaves to the Judiciary

the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of

lenity.”); Bell v. United States, 349 U.S. 81, 83 (1955)(same).3 Here, legislative intent cannot be

ascertained, and the usual methods of statutory construction have proven fruitless. I therefore

believe that application of the Rule of Lenity is appropriate. See Cuellar v. State, 70 S.W.3d 815,

821-26 (Tex. Crim. App. 2002)( Cochran, J., concurring).

        The Rule of Lenity requires application of the first method as the most lenient of the four

possibilities. Using the first method of calculation also is consistent with interpreting the phrase “[i]f

any sentence in the series is for an offense committed before the effective date of this Act, the

prisoner’s eligibility for parole is covered by the law in effect when that offense was committed, and

the former law is continued in effect for this purpose” as applying to both the non-aggregation statute

and the statute that provided that mandatory supervision applied to all sentences other than death.



        3

        W hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the
        ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration,
        or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It
        may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal
        code against the imposition of a harsher punishment. This in no wise implies that language used in
        criminal statutes should not be read with the saving grace of common sense with which other
        enactments, not cast in technical language, are to be read.

        Bell v. United States, 349 U.S. 81, 83 (1955)
                                                                                                      5

                                             Conclusion

        When applicant was sentenced for the aggravated robbery, only “a person under sentence

of death” was ineligible for mandatory supervision. Because applicant was eligible for mandatory

supervision on that initial sentence, he is likewise eligible for mandatory supervision release on the

aggregated sentence. Nothing in the subsequent laws has abrogated the laws in effect at the time of

that initial sentence, and the aggregation of both sentences pursuant to the saving clause means that

they should be treated as a single sentence for a conviction that is eligible for mandatory supervision.

        I conclude that applicant is entitled to relief. Because the previous laws regarding the

sentence for the 1986 offense remained in effect, applicant is entitled to have his release date on the

aggregated sentence calculated under those laws. Applicant’s consecutive sentences should be

calculated as an aggregated eighteen-year sentence on which applicant is eligible for mandatory

supervision. I respectfully dissent.



Delivered: July 2, 2008
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