             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



      K ELLER, P.J., delivered the opinion of the Court in which W OMACK, K EASLER,
H ERVEY, and C OCHRAN, JJ., joined. J OHNSON, J., filed a dissenting opinion in which
M EYERS, P RICE, and H OLCOMB, JJ., joined.



        This case presents a complex problem involving the stacking of sentences and eligibility for

mandatory supervision. What is important to keep in mind as we wade through a series of “savings

clauses” is not to confuse the when of eligibility for release with the whether of eligibility for release.

Running a sentence for a pre-1987 offense consecutively with a sentence for a post-1987 offense

affects when an inmate is eligible to be released on mandatory supervision on the sentence for the

later offense (if he can become eligible) but it does not affect whether the inmate is eligible on that

sentence for mandatory supervision. Because the applicant in this case is ineligible for mandatory
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supervision on his second sentence, he cannot ever be released to mandatory supervision on that

sentence.

                                        I. BACKGROUND

       Applicant committed an aggravated robbery in 1986. He was convicted of that offense in

1992, and punishment was assessed at confinement for eight years. Applicant was eligible for

mandatory supervision on that sentence.1 In 1999, while on mandatory supervision for the

aggravated robbery conviction, applicant committed the offense of possession of a firearm by a felon.

He was convicted of the firearm offense, and punishment was assessed at ten years. The sentence

for the firearm offense was ordered to run consecutively with the sentence for the aggravated robbery

offense. Absent the cumulation order, the firearm sentence would be considered ineligible for

mandatory supervision.2

       The Texas Department of Criminal Justice (TDCJ) has calculated applicant’s sentences in

the following manner: It first determined the mandatory supervision release date for the first sentence

(aggravated robbery) in isolation and then it added the entire term of the second sentence (possession

of a firearm) to that date to arrive at an overall mandatory supervision release date. Thus, TDCJ

treated the second sentence as ineligible for mandatory supervision by delaying mandatory

supervision release on the first sentence until the entire period of the second sentence had passed.

Applicant contends that, due to a savings clause that affects his first sentence, both of his sentences

should be added together and treated as a single eighteen-year sentence that is eligible for mandatory


       1
            See TEX . CODE CRIM . PROC. art. 42.18, §8(c)(West 1986).
       2
         See TEX . GOV ’T CODE §508.149(a)(11)(West 1998)(a person is ineligible for mandatory
supervision if he “has been previously convicted of . . . a first degree felony under Section 29.03
[aggravated robbery]”).
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supervision in its entirety. As a result of his proposed calculations, applicant contends that he is

entitled to be released to mandatory supervision immediately.

                                          II. ANALYSIS

                              A. The Changes in the Statutory Scheme

        Before September 1, 1987, consecutive sentences were “added together and treated as one

sentence” for the purpose of determining eligibility for release on parole and mandatory supervision3

and for the purpose of determining an inmate’s final discharge date.4 This treatment was based upon

the definition of “term” found in Article 6181-1.5 Beginning September 1, 1987, parole eligibility

is calculated separately for each sentence,6 and mandatory supervision eligibility is calculated only

for the final sentence in the series.7 This change was accomplished by the addition of §8(d) to article

42.18 of the Code of Criminal Procedure.8 In a different bill enacted that same year, the Legislature

added the same language to §8(b).9 The duplicate language in §8(b) was deleted two years later.10


        3
             Hannington v. State, 832 S.W.2d 355, 355 (Tex. Crim. App. 1992).
        4
             Ex parte Cowan, 171 S.W.3d 890, 893 n. 7 (Tex. Crim. App. 2005).
        5
         See Hannington and Cowan, cited above. In relevant part, the statute provided, “When two
or more sentences are to be served consecutively and not concurrently, the aggregate of the several
terms shall be considered the term for the purposes of this Article.” TEX . REV . CIV . ST . art. 6181-1,
§1(4).
        6
            T EX . CODE CRIM . PROC. art. 42.18, §8(d)(West 1988); Hannington, 832 S.W.2d at 355.
        7
          Ex parte Ruthart, 980 S.W.2d 469, 471-74 (Tex. Crim. App. 1998)(construing art. 42.18,
§8(c), (d)).
        8
             Acts 1987, 70th Leg., Ch. 1101 (S.B. 341), §7.
        9
         Acts 1987, 70th Leg., Ch. 384 (H.B. 680), §5; see also Ex parte Choice, 828 S.W.2d 5, 6
(Tex. Crim. App. 1992)(discussing the duplicate provisions).
        10
             Acts 1989, 71st Leg., Ch. 785 (H.B. 2335), §5.01; see also Choice, 828 S.W.2d at 6.
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        But the Legislature made another significant change in the law in 1987 that is relevant to the

present case: it amended §8(c) to specify, for the first time, that sentences for certain offenses would

no longer be eligible for the mandatory supervision program.11 Nearly a decade later, this bar to

mandatory supervision eligibility was extended to offenders who had been previously convicted of

an offense on the ineligibility list, even if the sentence currently being served is not for an offense

on that list.12

                                      B. The Savings Clauses13

        The 1987 amendments contained multiple savings provisions, corresponding to changes in

different subsections of the statute. One of the savings provisions applied to the change in the law



        11
             Acts 1987, Ch. 1101, §7 (amending §8(c)); see also Acts 1987, Ch. 384, §6.
        12
             Acts 1995, Ch. 263 (H.B. 1433), §1, effective Sept. 1, 1996.
        13
           The portions of Article 42.18 at issue were recodified in 1997 into various provisions of
§508 of the Government Code. Applicant’s second offense was committed after the recodification.
TDCJ contends that the savings clauses found in the 1987 amendments to Article 42.18 are no longer
effective because the Legislature did not carry forward the enabling clause when the recodification
occurred. But the codifying legislation did contain a provision that retained the savings clauses
under the prior law:

        (a) A transition or saving provision of a law codified by this Act applies to the
        codified law to the same extent as it applied to the original law.

        (b) The repeal of a transition or saving provision by this Act does not affect the
        application of the provision to the codified law.

        (c) In this section, "transition provision" includes any temporary provision providing
        for a special situation in the transition period between the existing law and the
        establishment or implementation of the new law.

So the savings clauses found in the 1987 amendments did carry over into the 1997 recodification.
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that required the separate computation of release dates for consecutive sentences:

       The change in law made by Section 7 of this Act by adding Subsection (d) to Section
       8, Article 42.18, Code of Criminal Procedure . . . applies only to a prisoner sentenced
       to serve consecutive sentences if each sentence in the series is for an offense
       committed on or after the effective date of this Act. If 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 that purpose.14

This savings provision retains prior law with respect to the stacking of sentences if any of the

sentences in the series was for an offense committed before the effective date of the statute, but this

provision is limited in scope. The first part of the savings clause paragraph explicitly applies only

to the subsection (d) amendments, while the second part applies only to parole eligibility.

       Neither part of the savings clause paragraph applies to the subsection (c) amendments

specifying that sentences for certain offenses would be ineligible for the mandatory supervision

program. The subsection (c) amendments were covered by a different savings clause paragraph:

       The change in the law made by Section 7 of this Act to Section 8(c), Article 42.18,
       Code of Criminal Procedure . . . applies to a defendant’s eligibility for release to
       mandatory supervision only if the defendant is sentenced for an offense committed
       on or after the effective date of this Act.15

This savings clause contained the more traditional wording, applying the change in the law to

offenses committed after the effective date of the statutory amendment while retaining prior law for

offenses committed before the effective date. This more traditional type of savings clause was used

when the Legislature later expanded mandatory supervision ineligibility to inmates with prior




       14
          Acts 1987, Ch. 1101, §18(e)(emphasis added). See also Acts 1987, Ch. 384, §8 (savings
clause for duplicate provision).
       15
            Acts 1987, Ch. 1101, §18(c)(emphasis added). See also Acts 1987, Ch. 384, §9.
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convictions that were on the ineligibility list.16

          So, while the savings clause applicable to §8(d) requires that we use pre-1987 law for

determining when an inmate is eligible for mandatory supervision on the sentence for his post-1987

offense, the savings clause applicable to §8(c) requires that we use post-1987 law to determine

whether he is eligible for mandatory supervision on that sentence. A seeming conflict occurs

because whether an inmate is eligible for mandatory supervision affects when he is eligible for

mandatory supervision (never) and makes it difficult to calculate multiple sentences as a unit when

at least one of the sentences can become eligible for mandatory supervision and one of the sentences

cannot.

                                      C. Reconciling the Provisions

          When engaging in statutory construction, we generally presume that “the entire statute is

intended to be effective.”17 When statutory amendments made in the same legislative session do not

reference each other, “the amendments shall be harmonized, if possible, so that effect may be given

to each.”18 Also, the Code of Criminal Procedure expressly provides that its provisions “shall be

liberally construed, so as to attain the objects intended by the Legislature: The prevention,

suppression, and punishment of crime.”19


          16
               Acts 1995, Ch. 263, §3.
          17
           T    EX . GOV ’T   CODE §311.021.
          18
           T    EX . GOV ’T   CODE§§311.025(b).
          19
          T EX . CODE CRIM . PROC. art. 1.26. Arguably this provision overrides the “rule of lenity.”
It is more strongly worded than the Penal Code counterpart that provides, “The rule that a penal
statute is to be strictly construed does not apply to this code. The provisions of this code shall be
construed according to the fair import of their terms, to promote justice and effect the objectives of
the code.” TEX . PEN . CODE §1.05(a). Even if the “rule of lenity” applies to the construction of the
                                                                                      FORWARD - 7

        The Legislature specifically sought to deny the benefit of mandatory supervision to offenders

who committed certain types of offenses. Permitting the §8(d) savings clause to override a

defendant’s mandatory supervision ineligibility frustrates the plain legislative intent. The frustration

of the Legislature’s objectives would be seen most clearly in the context of offenses committed while

the defendant is still in prison, for which consecutive sentencing is mandatory.20 The obvious

legislative intent of the mandatory stacking provision was to require that prisoners receive extra

punishment for committing crimes in prison. But a prisoner who commits a mandatory-supervision-

ineligible crime near the end of serving a long pre-1987 sentence could be subject to release much

sooner if he is deemed mandatory supervision eligible on the combined consecutive sentence than

if the new mandatory-supervision-ineligible sentence were to run concurrently. And TDCJ would

be forced to release him at that earlier mandatory supervision date because, even if the new crime

were committed after the enactment of the “discretionary” mandatory supervision provisions,21 the

same logic that would prevent the application of an absolute bar to mandatory supervision would

also preclude the post-1996 (and thus post-1987) statutorily-conferred discretion to deny release.

        Even when stacking is not mandatory, however, frustration of the Legislature’s intent would

still be evident. A trial judge who stacks a sentence does so to punish the defendant more harshly

than if the sentences run concurrently, but the applicant’s position, if adopted, would allow the



Code of Criminal Procedure, it provides the rule of decision only “when both alternative choices or
definitions are more-or-less equally reasonable.” Cuellar v. State, 70 S.W.3d 815, 823 n. 8 (Tex.
Crim. App. 2002)(Cochran, J., concurring).
        20
         T   EX . CODE   CRIM . PROC. art. 42.08(b).
        21
         See TEX . GOV ’T CODE §508.149(b); see also TEX . CODE CRIM . PROC. art. 42.18, §8(c-
1)(West 1996).
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reverse to occur. The present case is a good example: The applicant was sentenced in 1999 for ten

years on a mandatory-supervision-ineligible sentence. Had that sentence been run concurrent to the

prior sentence, TDCJ would have been required to release the applicant in 2009, when the sentence

discharged (although he could have been paroled before then). Applicant’s position would require

TDCJ to release him immediately, even though the trial court undoubtedly believed he was

punishing applicant more severely by running the sentences consecutively.

       The statutory provisions can be harmonized to avoid such odd results. When sentences

involving both pre- and post-1987 offenses are stacked, the savings clause relating to §8(d) would

operate in a straightforward fashion to treat those sentences as one unit under prior law for the

purpose of determining parole eligibility and for determining when the sentences discharge. The

sentences would likewise be treated as one unit for the purpose of determining when a defendant is

eligible for release on mandatory supervision for all sentences that are designated as eligible for

mandatory supervision. The savings clause relating to §8(c)(and savings clauses relating to

subsequent amendments to that subsection) would be given effect by denying mandatory supervision

release for a period of time represented by all mandatory-supervision-ineligible sentences. Under

this scheme, TDCJ would first calculate a release date for mandatory supervision for all the

mandatory-supervision-eligible sentences as a unit, and then it would add the length of any

mandatory-supervision-ineligible sentences to arrive at a final mandatory supervision release date.

That is the procedure followed by TDCJ in the present case.

       We deny relief.

Filed: July 2, 2008
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