                                                                       WR-31,454-03
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 6/25/2015 2:23:44 PM
                                                          Accepted 6/29/2015 2:29:20 PM
                                                                          ABEL ACOSTA
                     No. WR-31,454-03                                             CLERK




   IN THE COURT OF CRIMINAL APPEALS OF TEXAS



          EX PARTE RODNEY ELNESTO SMILEY


          On Application for a Writ of Habeas Corpus

       Trial Court Cause No. C-213-010293-1011284-B
                 213th Judicial District Court
                    Tarrant County, Texas


                   APPLICANT’S BRIEF


                               STATE COUNSEL FOR OFFENDERS

                               Kenneth Nash, Appellate Chief
                               State Bar of Texas No. 14811030

                               Nicholas Mensch
                               State Bar of Texas No. 24070262
                               P. O. Box 4005
                               Huntsville, TX 77342
                               (936) 437-5252
June 29, 2015                  (936) 437-5279 (fax)
                               nicholas.mensch@tdcj.texas.gov

                               Attorney for Applicant
                  IDENTITY OF PARTIES AND COUNSEL

APPLICANT:
Rodney Elnesto Smiley

COUNSEL FOR APPLICANT:
Kenneth Nash, Appellate Chief
State Bar of Texas No. 14811030
Nicholas Mensch
State Bar of Texas No. 24070262
State Counsel for Offenders
P.O. Box 4005; Huntsville, Texas 77340
(936) 437-5252/(936) 437-5279 fax

COUNSEL FOR THE STATE OF TEXAS:
Andrea Jacobs
State Bar of Texas No. 24037596
Assistant Criminal District Attorney, Tarrant County
401 West Belknap
Fort Worth, TX 76196-0201
(817) 884-1687/(817) 884-1672 (fax)

COUNSEL FOR THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE:
Joseph P. Corcoran
State Bar of Texas No. 00793549
Assistant Attorney General
Supervising Attorney for Non-Capital Appeals
Criminal Appeals Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400/(512) 936-1280 fax




                                         ii
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES & COUNSEL ................................................................. ii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED............................................................................................... 3

    I.        What remedy, if any, is appropriate for the Board of Pardons and
              Paroles’ failure to vote on Applicant’s original discretionary
              mandatory release date in a timely fashion? ............................................. 8

    II.       Is TDCJ’s policy (of not “releasing” a prisoner to mandatory
              supervision on one concurrent sentence until he is “eligible for
              release” on all concurrent sentences) legal? ............................................ 15

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 6

ARGUMENT ............................................................................................................. 8

PRAYER .................................................................................................................. 26

CERTIFICATE OF SERVICE ................................................................................ 27

CERTIFICATE OF COMPLIANCE ....................................................................... 28




                                                            iii
                                    INDEX OF AUTHORITIES

Cases

Board of Pardons v. Allen,
     482 U.S. 369 (1987).........................................................................................9

Boss v. Quarterman,
      552 F.3d 425 (5th Cir. 2008) .........................................................................20

Boykin v. State,
      818 S.W.2d 782 (Tex. Crim. App. 1991) ......................................................21

Clinton v. State,
      354 S.W.3d (Tex. Crim. App. 2011) ..................................................... 21, 22

Dodd v. Meno,
     870 S.W.2d 4 (Tex. 1994). ............................................................................21

Ex parte Alegria,
      464 S.W.2d 868 (Tex. Crim. App. 1971) ......................................................24

Ex parte Byrd,
      162 S.W.3d 250 (Tex. Crim. App. 2005) ......................................................17

Ex parte Cowan,
      171 S.W.3d 890 (Tex. Crim. App. 2005) ........................................................8

Ex parte Geiken,
      28 S.W.3d 553 (Tex. Crim. App. 2000) ................................. 9, 10, 15, 20, 25

Ex parte Hall
      995 S.W.2d 151 (Tex. Crim. App. 1999) ......................................................17

Ex parte Keller
      173 S.W.3d 492 (Tex. Crim. App. 2005) ......................................... 17, 20, 21

Ex parte Mabry,
      137 S.W.3d 58 (Tex. Crim. App. 2004) ..................................... 16, 17, 18, 24



                                                       iv
Ex parte Ramos,
      No. 59,134-01, 2004 Tex. Crim. App. LEXIS 1647 (Tex. Crim. App.
      September 29, 2004) (not designated for publication) ..................................13

Ex parte Retzlaff,
      135 S.W.3d 45 (Tex. Crim. App. 2004) ................................................. 10, 12

Ex parte Rieck,
      144 S.W.3d 510 (Tex. Crim. App. 2004) ......................................................21

Ex parte Roberts,
      987 S.W.2d 575 (Tex. Crim. App. 1999) ......................................................17

Ex parte Ruthart,
      980 S.W.2d 469 (Tex. Crim. App. 1998) ......................................................22

Ex parte Rutledge
      741 S.W.2d 460 (Tex. Crim. App. 1987) ............................................... 17, 24

Ex parte Schroeter,
      958 S.W.2d 811 (Tex. Crim. App. 1997) ......................................................18

Ex parte Shook,
      59 S.W.3d 174 (Tex. Crim. App. 2001) ................................................. 10, 20

Ex parte Smiley,
      WR-31,454-02, No. C-213-010241-1011284-A (Tex. Crim. App. August 6,
      2014) (not designated for publication) ............................................................2

Ex parte Smiley,
      WR-31,454-03, No. C-213-010293-1011284-B (Tex. Crim. App. November
      26, 2014) (not designated for publication) ......................................................2

Ex parte Smiley,
      WR-31,454-03, No. C-213-010293-1011284-B (Tex. Crim. App. April 29,
      2015) (not designated for publication) ............................................................2

Ex parte Thompson,
      173 S.W.3d 458 (Tex. Crim. App. 2005) ......................................... 17, 18, 23



                                                    v
Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,
     442 U.S. 1 (1979).......................................................................................9, 10

Hughes v. State,
     897 S.W.2d 285 (Tex. Crim. App. 1994) ......................................................24

LaChance v. Erickson,
     522 U.S. 262 (1998).......................................................................................10

Molinet v. Kimbrell,
     356 S.W.3d 407 (Tex. 2011) .........................................................................21

Moseley v. Behringer,
     184 S.W.3d 829 (Tex. App.—Fort Worth 2006, no pet.) .............................22

Teague v. Quarterman,
     482 F.3d 769 (5th Cir. 2007) .........................................................................20

Weaver v. Graham,
     450 U.S. 24 (1981).........................................................................................24

White v. State,
      61 S.W.3d 424 (Tex. Crim. App. 2001) ........................................................21

Wright v. Ector County Indep. Sch. Dist.,
     867 S.W.2d 863 (Tex. App.—El Paso 1993, no writ)...................................22

Constitutions

Article I, Section 10 of the United States Constitution ...........................................23

Article I, Section 16 of the Texas Constitution .......................................................23

Rules

Texas Rule of Appellate Procedure 73.1 ...................................................................2

Texas Rule of Appellate Procedure 77.3 .................................................................14




                                                       vi
Statutes

Texas Code of Criminal Procedure 42.18 § 8(c) (1994) ................................ passim

Texas Code of Criminal Procedure 42.18 § 8(c)(1-13) (1994) ....................... 16, 20

Texas Government Code § 311.011(a) ....................................................................21

Texas Government Code § 311.011(b) ....................................................................21

Texas Government Code § 311.016(2) ....................................................................22

Texas Government Code § 311.023(6) ....................................................................20

Texas Government Code § 508.147(a) ................................................................8, 15

Texas Government Code § 508.147(b) ......................................................................8

Texas Government Code § 508.149................................................................. passim

Texas Government Code § 508.149(a) ................................................................9, 15

Texas Government Code § 508.149(b) ......................................................... 9, 15, 17

Treatises

The American Heritage Dictonary (4th ed.) at 706 ..................................................22

Miscellaneous

Session Law, 74th Legislature, Regular Session, Chapter 263 §§ 3 and 4 (1995)..16

Session Law, 75th Legislature, Regular Session, Chapter 165 § 12.22 (1997) ......16




                                                   vii
                               No. WR-31,454-03




            IN THE COURT OF CRIMINAL APPEALS OF TEXAS



                   EX PARTE RODNEY ELNESTO SMILEY


                   On Application for a Writ of Habeas Corpus

                 Trial Court Cause No. C-213-010293-1011284-B
                           213th Judicial District Court
                              Tarrant County, Texas


                             APPLICANT’S BRIEF


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

      COMES NOW Rodney Elnesto Smiley, Applicant in cause number WR-

31,454-03, and submits this brief in accordance with the Texas Rules of Appellate

Procedure and this Court’s invitation on April 29, 2015:

                         STATEMENT OF THE CASE

       Applicant pled guilty to the third degree felony offense of injury to a child

with intent to cause bodily injury. See Exhibit C. Applicant did not appeal this

conviction. On June 23, 2014 filed an Application for a Writ of Habeas Corpus that



                                         1
was dismissed for non-compliance with Tex. R. App. P. 73.1 Ex parte Smiley, WR-

31,454-02, No. C-213-010241-1011284-A (Tex. Crim. App. August 6, 2014) (not

designated for publication). On August 25, 2014, Applicant re-filed his application.

On September 9, 2014, the State filed their answer. Thereafter, on September 18,

2014, the trial court adopted the State’s Memorandum, Findings of Fact and

Conclusions of Law as its own and recommended that the Applicant’s requested

relief be dismissed as moot. On November 26, 2014, this Court remanded the case

back to the trial court for resolution of whether Applicant was denied due process

by the late vote to deny him release to discretionary mandatory supervision. Ex

parte Smiley, WR-31,454-03, No. C-213-010293-1011284-B (Tex. Crim. App.

November 26, 2014) (not designated for publication). After the Texas Department

of Criminal Justice provided the trial court an affidavit in response, the trial court

again adopted the State’s Memorandum, Findings of Fact and Conclusions of Law

as its own and recommended that the Applicant’s requested relief should be denied

on February 24, 2015. On April 29, 2015, this Court filed and set this case for

submission and invited briefing on two issues. Ex parte Smiley, WR-31,454-03,

No. C-213-010293-1011284-B (Tex. Crim. App. April 29, 2015) (not designated

for publication).

      Applicant contends, among other things, that the Board of Pardons and

Paroles did not timey vote on his discretionary mandatory supervision release for


                                          2
the injury to a child conviction, and when the Board did vote to keep Applicant in

prison, they used the denial of release to mandatory supervision to deny his release

to mandatory supervision on the theft conviction. TDCJ responds that an offender

may not be released to mandatory supervision until eligible to be released on all

mandatory eligible offenses.

                                    ISSUE PRESENTED

I. What remedy, if any, is appropriate for the Board of Pardons and Paroles’
   failure to vote on Applicant’s original discretionary mandatory release
   date in a timely fashion?

II. Is TDCJ’s policy (of not “releasing” a prisoner to mandatory supervision
    on one concurrent sentence until he is “eligible for release” on all
    concurrent sentences) legal?

                                STATEMENT OF FACTS

       On November 28, 1994, Applicant was convicted of the offense of Theft of

Property, committed on February 8, 1994, and sentenced to 25 years’ confinement

in the TDCJ-ID. See Exhibit A.1 On August 30, 2001, Applicant was released from

custody on parole supervision. See Exhibit B-4. On October 26, 2006, while on

parole supervision, Applicant was convicted of the offense of Injury to a Child,

committed on August 1, 2004, and sentenced to 10 years’ confinement in TDCJ-

ID. See Exhibit C. On November 8, 2006, the Board of Pardons and Paroles

(“BPP”) revoked Applicant’s parole. See Exhibit B-3. Applicant’s theft conviction

1
   All references to exhibits herein are to those exhibits attached to the application for a writ of
habeas corpus.

                                                 3
is subject to the pre-1996 mandatory supervision statute, while his injury to a child

is governed by the current discretionary mandatory supervision statute. On

December 7, 2006, the TDCJ determined Applicant’s mandatory-supervision

release date on his old sentence as April 8, 2014, and his discretionary mandatory-

supervision release date on his new sentence as September 21, 2010. See Exhibit

D. Subsequently, Applicant was promoted in time-earning status, and his

mandatory-supervision release date on his old sentence was advanced to May 13,

2013. See Exhibit E-1. On January 14, 2013, the TDCJ notified Applicant that he

would be reviewed for discretionary mandatory-supervision release. See Exhibits F

and B-1. This occurred over two years after Applicant became eligible for release

on discretionary mandatory supervision on his injury to a child case and about 4

months before his mandatory supervision date on the theft case. On April 10, 2013,

a parole panel of BPP issued its decision to deny discretionary mandatory-

supervision release (DMS). See Exhibits G and B-1. He was been denied

discretionary mandatory supervision release on two subsequent reviews. The TDCJ

re-established Applicant’s discretionary mandatory-supervision release date on his

new sentence as February 8, 2016. See Exhibit E-1.

      In response to the question regarding when Applicant was eligible for

release to mandatory supervision, Charley Valdez, Program Supervisor III for the

Classification and Records Department of the TDCJ averred:


                                         4
       Because an offender may not be released to mandatory supervision
       until eligible to be released on all mandatory eligible offenses, TDCJ
       calculates the projected mandatory release date on the controlling
       mandatory eligible offense; in this instance cause number F-9402594-
       U had a projected mandatory supervision date of 5-12-2013, and his
       DMS notice was based on this date. On 1-29-2013, Applicant was
       provided notice that he was being reviewed for DMS on cause number
       1011284D, and that he had until 2-28-2013 to provide any
       information to the Board of Pardons and Parole (BPP) regarding his
       release. On 4-10-2013, the BPP voted to deny release to DMS with a
       next review date 04/2014.

       On 12-12-2013, Applicant was provided notice that he was being
       reviewed for DMS, and that he had until 1-11-2014 to provide any
       information to the BPP regarding his release. On 02-18-2014, the BPP
       voted to deny release to DMS with a next review date of 02/2015.

       On 10-14-2014, Applicant was provided notice that he was being
       reviewed for DMS, and that he had until 11-15-2014 to provide any
       information to the BPP regarding his release. On 12-15-2014, the BPP
       voted to deny release to DMS with a next review date of 12/2015.

Affidavit of Charley Valdez at 3.2

       As demonstrated by TDCJ’s notices (NDMS) and BPP’s votes to deny

discretionary mandatory-supervision release, see Exhibit B-1, the TDCJ and BPP

are treating Applicant’s old sentence as eligible for only discretionary mandatory-

supervision release and therefore, governed by Tex. Gov’t Code § 508.149.

Applicant’s mandatory-supervision release date (of May 13, 2013) elapsed over

two years ago, but he is still incarcerated on that old 25-year sentence. See Exhibit

E-1.

2
   Valdez also averred that “Applicant’s initial review date was not changed.” Affidavit of
Charley Valdez at 3.

                                               5
                       SUMMARY OF THE ARGUMENT

I. What remedy, if any, is appropriate for the Board of Pardons and Paroles’
   failure to vote on Applicant’s original discretionary mandatory release
   date in a timely fashion?

      Applicant’s subsequent notices after over two years of eligibility for

discretionary mandatory supervision were constitutionally deficient. The notices

were based upon the incorrect policy that TDCJ is applying to persons like

Applicant, who is serving both a prior sentence covered by the pre-1996 mandatory

supervision statue, and the current statute. That policy is not releasing an inmate to

mandatory supervision until he is eligible to be released on all mandatory eligible

offenses. By treating Applicant’s theft sentence as if it were to be construed under

Tex. Gov’t Code § 508.149 instead of former Tex. Code of Crim. Proc. 42.18 §

8(c)(1994) deprives Applicant of “the quantum and quality of the process due” in

this particular situation and is not serving a “purpose of minimizing the risk of

error.” This policy also deprived Applicant of review for discretionary mandatory

supervision for over two years after he became eligible. Based upon these deficient

notices and the illegality of TDCJ’s policy, Applicant should be immediately

released to mandatory supervision from the sentence imposed in for the felony

offense of Theft of Property because of the prejudice stemming from this illegal

policy.




                                          6
II. Is TDCJ’s policy (of not “releasing” a prisoner to mandatory supervision
    on one concurrent sentence until he is “eligible for release” on all
    concurrent sentences) legal?

        Applicant’s 1994 theft conviction is his holding conviction as it is the

sentence that will keep him in custody for the longest period of time, essentially

swallowing his 2006 conviction for injury to a child. Because Applicant’s holding

conviction for theft was committed prior to September 1, 1996, the former

provisions of Article 42.18 § 8(c) apply, not Tex. Gov’t Code § 508.149. Under the

law at time of his theft conviction, Applicant had an automatic right to release to

mandatory supervision once his actual time served plus accrued good conduct time

added up to the maximum term to which the inmate was sentenced. Because

Applicant’s theft conviction is the controlling mandatory supervision offense and

he is not serving his sentence for injury to a child consecutively with this offense,

Applicant was entitled to immediate release on mandatory supervision on May 12,

2013.

        TDCJ’s policy of not releasing an inmate to mandatory supervision until he

is eligible to be released on all mandatory eligible offenses is not legal as it violates

this Court’s prior precedent regarding eligibility for mandatory supervision, former

Art. 42.18 § 8(c), federal and state constitutional prohibition against ex post facto

laws, the state constitutional prohibition against retroactive laws, and the statutory

“savings provision.”


                                           7
                                       ARGUMENT

I. What remedy, if any, is appropriate for the Board of Pardons and Paroles’
   failure to vote on Applicant’s original discretionary mandatory release
   date in a timely fashion?

       At the time of Applicant’s conviction for theft in 1994, Art. 42.18 § 8(c)

provided, in pertinent part:

       Except as otherwise provided by this subsection, a prisoner who is not
       on parole shall be released to mandatory supervision by order of a
       parole panel when the calendar time he has served plus any accrued
       good conduct time equal the maximum term to which he was
       sentenced. A person released to mandatory supervision shall, upon
       release, be deemed as if released on parole.

       Tex. Code of Crim. Proc. 42.18 § 8(c) (1994) (emphasis added)3

       Currently release to mandatory supervision4 is governed by Chapter 508 of

the Texas Government Code. Specifically, Tex. Gov’t Code §508.147(a) provides:

       Except as provided by Section 508.149, a parole panel shall order the
       release of an inmate who is not on parole to mandatory supervision
       when the actual calendar time the inmate has served plus any accrued
       good conduct time equals the term to which the inmate was sentenced

       (emphasis added).




3
    Applicant contends the prior statute governs his mandatory supervision eligibility. See Infra
at 15-20.
4
    “An inmate released to mandatory supervision is considered to be released on parole.” Tex.
Gov’t Code §508.147(b), see also Ex parte Cowan, 171 S.W.3d 890, 895 (Tex. Crim. App. 2005)
(Johnson, j., concurring) (characterizing mandatory supervision as a “fraternal twin” of parole).

                                               8
       Tex. Gov’t Code § 508.149(a) lists 21 disqualifications for release on

mandatory supervision. Moreover, subdivision (b) forbids release on mandatory

supervision if a parole panel determines that:

       the inmate’s accrued good conduct time is not an accurate reflection
       of the inmate’s potential for rehabilitation; and (2) the inmate’s
       release would endanger the public.

       “The [U.S.] Supreme Court has determined that a liberty interest is created a

when the state statute uses such mandatory language.”                   Ex parte Geiken, 28

S.W.3d 553, 558 (Tex. Crim. App. 2000), citing Greenholtz v. Inmates of

Nebraska Penal and Correctional Complex, 442 U.S. 1, 11-12 (1979). The U.S.

Supreme Court has also concluded “that a statute’s use of mandatory language,

specifically the word ‘shall,’ creates a presumption that release will be granted

when certain findings are made.” Id., citing to Board of Pardon v. Allen, 482 U.S.

369, 377 (1987).5 It has been noted that “it would appear that Texas Inmates have

less of a ‘liberty’ interest under the current statutory scheme than they did under

the prior scheme since the prior scheme provided for ‘automatic’ release and the




5
    "In analyzing the current mandatory supervision statute, this Court held that “the language of
the statute does create a liberty interest in mandatory supervision release.” Ex parte Geiken, 28
S.W.3d at 558. This differs from the regular parole process as an inmate does not have this
liberty interest. Id.


                                                9
current scheme does not.” Ex parte Retzlaff, 135 S.W.3d 45, 54 (Tex. Crim. App.

2004) (Hervey, J., dissenting).6

       Since Applicant has a liberty interest, “due process requires notice and a

meaningful opportunity to be heard.” Ex parte Geiken, 28 S.W.3d at 560, citing to

LaChance v. Erickson, 522 U.S. 262, 266 (1998). “If release is denied, the inmate

must be informed in what respects he falls short of qualifying for early release.”

Id., citing to Greenholtz, 442 U.S. at 16. “[T]o comply with due process in making

the mandatory release decision, the Board must provide an inmate with timely

notice that he will be considered for mandatory supervision release prior to that

review taking place.” Ex parte Geiken, 28 S.W.3d at 560. See also Ex parte Shook,

59 S.W.3d 174, 175 (Tex. Crim. App. 2001).7 An inmate has a constitutional due-

process right to 30 days’ advance notice of the specific month and year in which he

will be reviewed for release on mandatory supervision so that he has sufficient

opportunity to submit materials on his behalf. Ex parte Retzlaff, 135 S.W.3d 45, 50

(Tex. Crim. App. 2004) (holding that notice to an inmate that he will be reviewed

6
   Release was automatic when the calendar time a person has served plus any accrued good
conduct time equal the maximum term to which that person was sentenced. Tex. Code of Crim.
Proc. 42.18 § 8(c) (1994).
7
    “[W]hen the board gives the inmate notice of a specific date on which the hearing is
scheduled to take place, the inmate is entitled to rely on that information and accordingly has
until that date to submit relevant information on his behalf. If the board holds the hearing for
such consideration on a date earlier than the specific date the inmate has been notified the
hearing will take place, then the inmate has been misled by the notice and denied the full
opportunity he was told he would have in order to submit relevant information to the Board.” Ex
parte Shook, 59 S.W.3d at 176.

                                              10
for mandatory-supervision release at some unspecified time before his projected

release date does not constitute timely notice consistent with due process).

      Applicant became eligible for discretionary mandatory supervision release

on his injury to a child sentence on September 21, 2010, and for mandatory

supervision release on his prior theft sentence on April 8, 2014. See Exhibit D.

Subsequently, Applicant was promoted in time-earning status and his mandatory

supervision date on his theft sentence was advanced to May 13, 2013. See Exhibit

E-1. “Because an offender may not be released to mandatory supervision until

eligible to be released on all mandatory eligible offenses, TDCJ calculates the

projected mandatory release date on the controlling mandatory eligible offense[.]”

Affidavit of Charley Valdez at 3. In other words, for over two years, even though

Applicant became eligible for release to discretionary mandatory supervision,

Applicant did not receive notice of that eligibility by TDCJ or BPP and he was

denied any hearing with the opportunity to present evidence on his behalf to obtain

discretionary mandatory supervision. See Id. (“On 1-29-2013, Applicant was

provided notice that he was being reviewed for DMS on cause number 1011284D,

and that he had until 2-28-2013 to provide any information to the Board of Pardons

and Paroles (BPP) regarding his release.”). “On 4-10-2013, the BPP voted to deny

release to DMS [on Applicant’s injury to a child sentence] with a new review date

of 4-1-2014[,] because Applicant’s “controlling mandatory eligible offense” was


                                         11
his theft sentence. Id. On April 1, 2014, Applicant’s “controlling mandatory

eligible offense” became his injury to a child sentence because he attained his

mandatory supervision release date on May 13, 2013 on his theft sentence. See

Exhibit E-1. That subsequent review date of April 1, 2014, lapsed after BPP again

voted to deny discretionary mandatory supervision release, See Exhibits B-1 and

E-1, even though Applicant had already obtained his mandatory supervision date.

       The notices were constitutionally deficient. The failure to provide notice for

over two years after Applicant obtained eligibility for discretionary mandatory

supervision and the subsequent notices he received were based upon the incorrect

policy that TDCJ is applying to persons like Applicant, who is serving both a prior

sentence covered by the pre-1996 mandatory supervision statue and the current

statute.8 That policy is not releasing an inmate to mandatory supervision until he is

eligible to be released on all mandatory eligible offenses. See Infra at 20-25

(outlining how this policy is not legal). By treating Applicant’s theft sentence as if

it were to be construed under Tex. Gov’t Code § 508.149 instead of former Tex.

Code of Crim. Proc. 42.18 § 8(c)(1994) deprives Applicant of “the quantum and

quality of the process due” and in this particular situation is not serving a “purpose

of minimizing the risk of error.” Ex parte Retzlaff, 135 S.W.3d at 49. By treating


8
    Applicant notes that the first notice of review for discretionary mandatory supervision was
given to him less than 4 months before he became eligible for release to mandatory supervision
for his theft case.

                                              12
Applicant’s prior 1996 sentence as only eligible for discretionary mandatory

supervision and basing the subsequent notices on that assumption, TDCJ and BPP

have created a faulty premise that deprives Applicant of his mandatory release that

he was scheduled to obtain on May 13, 2013. It also denied him any possible

review after he was eligible for discretionary mandatory supervision on his injury

to a child case for over two years. It is conceivable that, if the TDCJ and the BPP

continue to engage in this nefarious conduct, Applicant will not be released on

mandatory supervision on his theft sentence (which he was entitled to May 13,

2013) until February 8, 2016, the date his injury to a child offense discharges. See

Affidavit of Charley Valdez at 3 (“On 12-12-2013, Applicant was provided notice

that he was being reviewed for DMS [discretionary mandatory supervision] and

that he had until 11-11-2014 to provide any information to the BPP regarding his

release. On 2-18-2014, the BPP voted to deny release to DMS with a next review

date of 2-1-2015.”).

      This Court, in an unpublished decision, stated that because a person received

timely and specific notice of his most recent review hearing, his claim that he did

not receive constitutionally sufficient notice on his three prior reviews was moot.

See Ex parte Ramos, No. 59,134-01 2004 Tex. Crim. App. LEXIS 1647 (Tex.




                                        13
Crim. App. September 29, 2004) (not designated for publication).9 Here, the

situation is distinguishable. As stated earlier, the notice that has been given is

constitutionally defective because of TDCJ and BPP’s faulty premise that

Applicant’s pre-1996 theft case is governed by Tex. Gov’t Code § 508.149, instead

of former Tex. Code of Crim. Proc. 42.18 § 8(c)(1994). Based upon this faulty

premise, Applicant has never been given accurate notice as to his mandatory

supervision dates, and he was denied notice and review of his case for over two

years. Subsequent reviews do render this failure to provide notice of his DMS

moot as Applicant is still being harmed by this policy to this day as he has still not

been released to mandatory supervision on his theft case. This, in effect, rendered

the notices useless and deprived Applicant any meaningful opportunity to be heard

or reviewed by the BPP for discretionary mandatory supervision as he has now

become eligible for mandatory supervision and is entitled to immediate release.

       Applicant should be immediately released to mandatory supervision from

the sentence imposed in Cause No. F-9402594-PU for the felony offense of Theft

of Property because of the prejudice stemming from the illegal policy TDCJ has

created. See Infra at 20-25.




9
    See Tex. R. App. 77.3 (“Unpublished opinions have no precedential value and must not be
cited as authority by counsel as authority by counsel or by a court.”). Applicant’s counsel does
not cite this case as authority, but in an abundance of caution, cites this case only to rebut the
State’s reliance that his claim is moot as the trial court found.

                                               14
II. Is TDCJ’s policy (of not “releasing” a prisoner to mandatory supervision
    on one concurrent sentence until he is “eligible for release” on all
    concurrent sentences) legal?

      Currently release to mandatory supervision is governed by Chapter 508 of

the Texas Government Code. Specifically, Tex. Gov’t Code §508.147(a) provides:

      Except as provided by Section 508.149, a parole panel shall order the
      release of an inmate who is not on parole to mandatory supervision
      when the actual calendar time the inmate has served plus any accrued
      good conduct time equals the term to which the inmate was sentenced

      Tex. Gov’t Code § 508.149(a) lists 21 disqualifications for release on

mandatory supervision. Moreover, subdivision (b) forbids release on mandatory

supervision if a parole panel determines that:

      (1) the inmate’s accrued good conduct time is not an accurate
          reflection of the inmate’s potential for rehabilitation; and (2) the
          inmate’s release would endanger the public.

      In summarizing the legislative history of Section 508.149, this Court stated:

      ***In 1996, the Legislature amended the mandatory supervision
      statute. Under the old statute, an eligible prisoner was automatically
      released when the actual time served plus accrued good conduct time
      added up to the maximum term to which the inmate was sentenced.
      See Art. 42.18, V.A.C.C.P. (1995). Under the amended statute,
      prisoners who are eligible under the statutory formula may be denied
      release if a prole panel determines that the inmate’s accrued good
      conduct time credits do not adequately reflect his potential for
      rehabilitation and that he would endanger the public if released. 42.18,
      §§ 8(c), 8(c-1), V.A.A.C.P. (1996). The amendments to the Code of
      Criminal Procedure were effective September 1, 1996, and these
      provisions were later moved to the Government Code. V.T.C.A. Gov’t
      Code § 508.149(b).

      Ex parte Geiken, 28 S.W.3d at 555.

                                         15
        Tex. Gov’t Code § 508.149 applies only to a prisoner serving a sentence for

an offense committed on or after September 1, 1996; however, a prisoner serving a

sentence for an offense committed before September 1, 1996, is covered by the law

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

effect for that purpose.” 10 Ex parte Mabry, 137 S.W.3d 58 (Tex. Crim. App. 2004),

citing Session Law, 74th Legislature, Regular Session, Chapter 263 §§ 3 and 4

(1995).

        TDCJ contends that an offender may not be released to mandatory

supervision until eligible to be released on all mandatory eligible offenses. See

Affidavit of Charley Valdez at 3. Applicant is currently serving two sentences, his

theft conviction committed in 1994, and his injury to a child conviction committed

in 2004. Neither offense would make Applicant automatically ineligible for

mandatory supervision. See Tex. Code of Crim. Proc. 42.18 § 8(c)(1-13) (1994)

10
    These amendments constituted a saving clause. Section 3(a) provided: “The change in law
made by this Act applies only to a prisoner serving a sentence for an offense committed on or
after the effective date of this Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs before the effective date.”

    Section 3(b) provided: “A prisoner serving a sentence for an offense committed before the
effective date of this Act is covered by the law in effect when the offense was committed, and
the former law is continued in effect for that purpose.”

     Mabry, 137 S.W.3d at 60.

    After the provisions were moved to the Government Code, the savings provision was
incorporated into §§ 508.147 and 508.149, and remains applicable. See Act of May 8, 1997, 75th
Leg., R.S. Ch. 165, § 12.22, 1997 Tex. Gen. Laws 443.


                                               16
and Tex. Gov’t Code § 508.149(b). Applicant’s conviction for injury to a child

was not stacked on his theft conviction. See Exhibit C. Thus, the determinative

factor in this case is which offense is Applicant’s holding offense that determines

his mandatory supervision eligibility. This Court has repeatedly stated that “[t]he

statute in effect when the holding offense is committed determines an inmate’s

eligibility for release on mandatory supervision or parole.” Ex parte Thompson,

173 S.W.3d 458, 459 (Tex. Crim. App. 2005) (emphasis added). See also Ex parte

Hall, 995 S.W.2d 151 (Tex. Crim. App. 1999), Ex parte Keller, 173 S.W.3d 492,

495 (Tex. Crim. App. 2005), Ex parte Byrd, 162 S.W.3d 250, 252 (Tex. Crim.

App. 2005), Ex parte Roberts, 987 S.W.2d 575, 576 (Tex. Crim. App. 1999), and

Ex parte Rutledge, 741 S.W.2d 460 (Tex. Crim. App. 1987) (holding that

retrospective application of a statutory amendment disqualifying Rutledge’s

offense for an award of administrative good-conduct time credit (in order to

alleviate prison overcrowding) constituted an ex post facto law in violation of both

federal and state constitutions). “Once eligible [a person] remains eligible

regardless of whether the applicable mandatory supervision law has changed in the

meantime.” Ex parte Keller, 173 S.W.3d at 495. “When an inmate has multiple

convictions, he will have one conviction which governs his release date, either

because it is the most recent, contains the longest sentence, or has the least amount

of time credits.” Ex parte Mabry, 137 S.W.3d at 63 (Keasler, J., concurring). The


                                         17
holding conviction “is the conviction that will keep the prisoner in custody for the

greatest amount of time.” Id.      Applicant’s theft offense contains the longest

sentence that he is still serving, and is the conviction that will keep Applicant in

custody for the greatest amount of time as he is not scheduled to completely

discharge that sentence until November 2, 2023. See Exhibit E-1. Applicant

discharges his sentence for injury to a child on February 8, 2016. Id. Applicant’s

theft conviction is thus his holding conviction and controls which statute is

applicable to his mandatory supervision eligibility. Thompson, 173 S.W.3d at 459.

      Because Applicant’s holding conviction for theft was committed prior to

September 1, 1996, the former provisions of Article 42.18 § 8(c) apply, not Tex.

Gov’t Code § 508.149. See Ex parte Schroeter, 958 S.W.2d 811 (Tex. Crim. App.

1997) (incorporating Tex. Code of Crim. Proc. 42.18 § 8(c) as it existed on

November 19, 1994). At the time of Applicant’s conviction for theft in 1994, Art.

42.18 § 8(c) provided, in pertinent part:

      Except as otherwise provided by this subsection, a prisoner who is not
      on parole shall be released to mandatory supervision by order of a
      parole panel when the calendar time he has served plus any accrued
      good conduct time equal the maximum term to which he was
      sentenced. A person released to mandatory supervision shall, upon
      release, be deemed as if released on parole.

      ***
      A prisoner may not be released to mandatory supervision if the
      prisoner is serving a sentence for an offense and the judgment for the
      offense contains an affirmative finding under Subdivision (2),


                                            18
Subsection (a), Section 3g, Article 42.12, of this code or if the person
is serving a sentence for:

(1) a first degree felony under Section 19.02, Penal Code (Murder);

(2) a capital felony under Section 19.03, Penal Code (Capital Murder);

(3) a first degree felony or a second degree felony under Section 20.04
Penal Code (Aggravated Kidnapping);

(4) a second degree felony under Section 22.011, Penal Code (Sexual
Assault);

(5) a second degree or first degree felony under Section 22.02, Penal
Code (Aggravated Assault);

(6) a first degree felony under Section 22.021, Penal Code
(Aggravated Sexual Assault);

(7) a first degree felony under Section 22.04, Penal Code (Injury to a
Child or an Elderly Individual);

(8) a first degree felony under Section 28.02, Penal Code (Arson);

(9) a second degree felony under Section 29.02, Penal Code
(Robbery);

(10) a first degree felony under Section 29.03, Penal Code
(Aggravated Robbery);

(11) a first degree felony under Section 30.03, Penal Code (Burglary),
if the offense is punished under Subsection d(2) or (d)(3) of that
section; or

(12) [Blank].

(13) a felony for which the punishment is increased under Section
481.134, Health and Safety Code (Drug Free Zones)



                                  19
       “Under the old statute, an eligible prisoner was automatically released when

the actual time served plus accrued good conduct time added up to the maximum

term to which the inmate was sentenced.” Ex parte Shook, 59 S.W.3d at 175. See

also Ex parte Geiken, 28 S.W.3d at 555 and Boss v. Quarterman, 552 F.3d 425,

427 (5th Cir. 2008) (“This early-release provision is termed ‘mandatory’ because

prior to September 1, 1996, once a prisoner’s actual time served plus his accrued

good-time credit equaled his prison sentence, the inmate had a nondiscretionary

right to release under Texas Law ‘based solely on simple arithmetic.’”), citing

Teague v. Quarterman, 482 F.3d 769, 775 (5th Cir. 2007). Theft of Property was

not one of the ineligible offense for mandatory supervision as it does not contain

an affirmative funding under Subdivision (2), Subsection (a), Section 3g, Article

42.12, See Exhibit A, and it is not an offense delineated in Tex. Code of Crim.

Proc. 42.18 § 8(c)(1-13) (1994).11

       Thus, TDCJ’s policy runs afoul of former Art. 42.18 § 8(c)’s plain language.

“The construction of a statute by an administrative agency charged with its

enforcement is entitled to great consideration when that statue is ambiguous and if

the construction is reasonable and does not contradict the statute’s plain language.”

Ex parte Keller, 173 S.W.3d at 497, fn. 14. See also Tex. Gov’t Code § 311.023(6)


11
   Applicant’s injury to a child conviction committed in 2004 was a 3rd degree felony as it was
with intent to cause bodily injury. See Exhibit C.


                                              20
and Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994). “This Court has held that courts are

required to construe a statute in accordance with the plain meaning of its literal text

unless the language of the statue is ambiguous or the plain meaning leads to an

absurd result.” White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). The

text of the statute is the best indicator of legislative intent. See Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991) and Molinet v. Kimbrell, 356 S.W.3d

407, 411 (Tex. 2011). This Court looks at the “collective’ intent or purpose of the

legislators who enacted the legislation.” Clinton v. State, 354 S.W.3d 795, 800

(Tex. Crim. App. 2011), citing Boykin, 818 S.W.2d at 785. This determination

begins by “first looking to the literal text” as that “provides the best means to

determine ‘the fair, objective meaning of that text at the time of its enactment.’” Id.

“Words or phrases shall be read in context and construed according to the rule of

grammar and common usage.” Tex. Gov’t Code § 311.011(a). “Moreover, ‘words

or phrases that have acquired a technical or particular meaning, whether by

legislative definition or otherwise, shall be construed accordingly.’” Ex parte

Keller, 173 S.W.3d at 499 (Keller, P.J., dissenting), citing to Ex parte Rieck, 144

S.W.3d 510, 512 (Tex. Crim. App. 2004) and Tex. Gov’t Code § 311.011(b).

      Former Art. 42.18 § 8(c) specifically states, “Except as otherwise provided

by this subsection, a prisoner who is not on parole shall be released to mandatory

supervision by order of a parole panel when the calendar time he has served plus


                                           21
any accrued good conduct time equal the maximum term to which he was

sentenced.” Tex. Code of Crim. Proc. 42.18 § 8(c) (1994). By using the word

“shall,” the statute “imposes a duty to some act.” Moseley v. Behringer, 184

S.W.3d 829, 833 (Tex. App.—Fort Worth 2006, no pet.), citing to Tex. Gov’t

Code 311.016(2). “The ordinary meaning of ‘shall’ or ‘must’ is of a mandatory

effect.” Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex.

App.—El Paso 1993, no writ). The duty in this instance is to release a prisoner to

mandatory supervision once a certain condition has met and if there is no exception

applicable. This Court, in construing the phrase “maximum term” in former Art.

42.12 § 8 (c), stated “For an inmate serving two or more concurrent sentences, we

believe his maximum term must be the longest of the concurrent sentences because

this is the sentence that will keep him incarcerated for the longest amount of time.”

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

that mandatory supervision causes a person’s first sentence to cease to operate in

the context of consecutive sentences). Although, released is not specifically

defined by former Article 42.18, in this context, it has been defined as “(1) To set

free from confinement or restraint” and (2) “To free or unfasten; let go.” The

American Heritage Dictionary (4th ed.) at 706. See also Clinton, 354 S.W.3d at 800

(“When determining the fair, objective meaning of an undefined statutory term, our

Court may consult standard dictionaries.”).


                                         22
      The Legislative intent is clear and unambiguous, to release a person from

prison once their calendar time served plus any accrued good conduct time equaled

the maximum term to which he was sentenced. Applicant’s “holding offense” is his

pre-1996 Theft conviction. This Court determines mandatory supervision

eligibility based upon “[t]he statute in effect when the holding offense [was]

committed.” Ex parte Thompson, 173 S.W.3d at 459. Because of this, we look to

Applicant’s theft conviction in determining his eligibility for mandatory

supervision. Thus, based on the plain and unambiguous language of former Art.

42.18 § 8(c), and this Court’s precedent, Applicant was entitled to release on

mandatory supervision on May 12, 2013 on his theft conviction. TDCJ’s policy not

releasing a person to mandatory supervision until eligible to be released on all

mandatory eligible offenses finds no statutory support in either former Art. 42.18 §

8(c), or this Court’s precedent in determining eligibility for mandatory supervision.

      TDCJ’s policy also violates the federal and state constitutional prohibitions

against ex post facto laws, the state constitutional prohibition against retroactive

laws, and the statutory “savings provision.” Article I, Section 10 of the United

States Constitution forbids a state from passing, among other things, any ex post

facto law; and Article I, Section 16 of the Texas Constitution proscribes the

making of, among other things, an ex post facto law and retroactive law. In      this

context the Texas Constitution affords greater protection than its federal


                                         23
counterpart because “‘the former is not confined to forbidding ex post facto laws,

i.e. retroactive penal legislation, but it also lays a ban on any retroactive law.’” Ex

parte Alegria, 464 S.W.2d 868, 872 (Tex. Crim. App. 1971) (quoting the

Interpretative Commentary to Article I, Section 16 of the Texas Constitution). See

Ex parte Rutledge, 741 S.W.2d at 463 (Clinton, J., concurring) (stating that the

Texas Constitutional prohibition against retroactive laws “is broader than the

restrictive construction given ‘ex post facto law.’”). For an ex post facto violation

to occur, two elements must be present: (1) the law must apply to events occurring

before its enactment; and (2) it must disadvantage the person affected by it.

Hughes v. State, 897 S.W.2d 285, 298 (Tex. Crim. App. 1994) and Weaver v.

Graham, 450 U.S. 24, 29 (1981) (holding that the retroactive application of a

good-conduct time statute to a crime committed before its enactment constituted a

federal ex post facto violation).

      As stated supra, Tex. Gov’t Code § 508.149 applies only to a prisoner

serving a sentence for an offense committed on or after September 1, 1996;

however, a prisoner serving a sentence for an offense committed before September

1, 1996, is covered by the law in effect when the offense was committed, “and the

former law is continued in effect for that purpose.” Ex parte Mabry, 137 S.W.3d

58 (Tex. Crim. App. 2004). As the law existed prior to September 1, 1996,

Applicant would have been automatically released (on mandatory supervision)


                                          24
when his actual time served plus accrued good-conduct time equaled the maximum

term to which he had been sentenced for the felony offense of Theft by Property.

See Ex parte Geiken, 28 S.W.3d at 555. In this case, that date was May 13, 2013.

As demonstrated by TDCJ’s notices (NDMS) and BPP’s votes to deny

discretionary mandatory-supervision release, see Exhibit B-1, the TDCJ and BPP

are treating Applicant’s old sentence as eligible for only discretionary mandatory-

supervision release and therefore, governed by Tex. Gov’t Code § 508.149.

Applicant’s mandatory-supervision release date (of May 13, 2013) elapsed over

two years ago, but he is still incarcerated on that old 25-year sentence. See Exhibit

E-1. By applying Tex. Gov’t Code § 508.149 to his old theft sentence, TDCJ and

the BPP have violated the federal and state constitutional prohibition against ex

post facto laws, the state constitutional prohibition against retroactive laws, and the

statutory “savings provision.”

      Based on the foregoing, it is clear that TDCJ’s policy of not releasing an

inmate to mandatory supervision until he is eligible to be released on all mandatory

eligible offenses is not legal as it violates this Court’s prior precedent regarding

eligibility for mandatory supervision, former Art. 42.18 § 8(c), federal and state

constitutional prohibition against ex post facto laws, the state constitutional

prohibition against retroactive laws, and the statutory “savings provision.”




                                          25
                                   PRAYER

      Applicant Rodney Ernesto Smiley prays that this grant his Application for a

Writ of Habeas Corpus and order the Texas Department of Criminal Justice and the

Board of Pardons and Paroles to immediately release him on mandatory

supervision from the sentence imposed in Cause No. F-9402594-PU for the felony

offense of Theft of Property. Applicant also prays for such other relief that this

Court may deem appropriate.

                                     Respectfully submitted,
                                     STATE COUNSEL FOR OFFENDERS

                                     /s/ Nicholas Mensch
                                     Nicholas Mensch
                                     State Bar of Texas No. 24070262
                                     P.O. Box 4005
                                     Huntsville, Texas 77342-4005
                                     (936) 437-5252
                                     (936) 437-5279 (fax)
                                     nicholoas.mensch@tdcj.texas.gov




                                       26
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Applicant’s Brief was

served upon opposing counsel noted below, by one or more of the following:

certified mail (return receipt requested), facsimile transfer, or electronic mail (e-

mail), this 25th day of June, 2015.

Andrea Jacobs
State Bar of Texas No. 24037596
Assistant Criminal District Attorney, Tarrant County
401 West Belknap
Fort Worth, TX 76196-0201
(817) 884-1687/(817) 884-1672 (fax)

Joseph P. Corcoran
State Bar of Texas No. 00793549
Assistant Attorney General
Supervising Attorney for Non-Capital Appeals
Criminal Appeals Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1400/(512) 936-1280 fax



                                       /s/ Nicholas Mensch
                                       Nicholas Mensch
                                       Attorney for Applicant




                                         27
                     CERTIFICATE OF COMPLIANCE

      This document complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i) because this brief contains 5814 words.


                                      /s/ Nicholas Mensch
                                      Nicholas Mensch
                                      Attorney for Applicant




                                        28
