          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. WR-34,095-24



                       EX PARTE ANTONIO SEPEDA, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 10CR0038-83-2 IN THE 405TH DISTRICT COURT
                          GALVESTON COUNTY

       J OHNSON, J., delivered the opinion of the unanimous Court.

                                         OPINION

       In this application for writ of habeas corpus, applicant asserts a due-process violation for a

parole-denial letter that was not in compliance with Texas Government Code § 508.1411. We filed

and set the writ application for submission and ordered briefing on three issues.

       Whether an applicant who contends that under the Texas Government Code §
       508.1411 the Board’s written notice violated the Due Process Clause of the United
       States Constitution has an adequate remedy on habeas when there is not a
       presumption of release to parole.

       Assuming for the sake of argument that an applicant does have an adequate remedy
       on habeas, whether Texas Government Code § 508.1411 implicates due process and
       the written notice provided by the Board satisfies due process.

       Whether an application for a writ of mandamus is the proper remedy for such claims.
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       We hold that a writ of habeas corpus is the proper remedy by which to compel the Board of

Pardons and Paroles (the “Board”) to provide a parole-denial letter in compliance with Texas

Government Code § 508.1411 and that § 508.1411 does not create a liberty interest protected by due

process. After considering the statutes, the pleadings of the parties, and the most recent notice of

denial of parole sent to applicant by the Board, we deny relief.

                                                Facts

       While on parole for a 40-year sentence that began in July 1987, applicant was convicted of

the felony offense of violation of a protective order and, on October 15, 2010, was sentenced to eight

years’ imprisonment. From May 2011 through May 2015, applicant applied for parole. Each time,

the Board denied release. Applicant was provided written notice each time he was denied parole.

The notice of parole-panel-decision letters for each of the last five years are essentially identical.

              You have been denied parole for the reason(s) listed below:
       One or more components indicated in each paragraph listed below may apply, but
       only one is required.

       1D      The record indicates that the inmate has repeatedly committed criminal
               episodes or has a pattern of similar offenses that indicates a predisposition to
               commit criminal acts when released; or the record indicates that the inmate
               is a leader or active participant in gang or organized criminal activity; or the
               record indicates a juvenile or an adult arrest or investigation for felony and
               misdemeanor offenses.

       2D      The record indicates that the inmate committed one or more violent criminal
               acts indicating a conscious disregard for the lives, safety, or property of
               others; or the instant offense or pattern of criminal activity has elements of
               brutality, violence, or conscious selection of victim’s vulnerability such that
               the inmate poses a continuing threat to public safety; or the record indicates
               use of a weapon.

       5D      The record indicates unsuccessful periods of supervision on previous
               probation, parole, or mandatory supervision that resulted in incarceration,
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               including parole-in-absentia revocations.

       Applicant asserts that the language used by the Board in its letter denies him due process and

due course of law by providing numerous reasons for denial, separated in the parole-denial letter by

the conjunction “or.” Applicant contends that, as written, the letter does not conform to the

mandates of Texas Government Code § 508.1411, which requires the Board to list the reasons for

denial of parole “in clear and understandable language” that “explains . . . the decision” and “the

reasons for the decision only to the extent those reasons relate specifically to the inmate.” §

508.1411(a)(1)(A-B).

                                              Analysis

       Texas Government Code § 508.1411 states:

       (a) For each decision of a parole panel granting or denying the release of an inmate
       on parole, or denying the release of an inmate on mandatory supervision, the parole
       panel shall:
               (1) produce a written statement, in clear and understandable language,
               that explains:
                        (A) the decision; and
                        (B) the reasons for the decision only to the extent
                        those reasons relate specifically to the inmate;
               (2) provide a copy of the statement to the inmate; and
               (3) place a copy of the statement in the inmate’s file.
       (b) In a written statement produced under Subsection (a), the parole panel may
       withhold information that:
               (1) is confidential and not subject to public disclosure under Chapter
               552; or
               (2) the parole panel considers to possibly jeopardize the health or
               safety of any individual.
       (c) The board shall keep a copy of each statement produced under Subsection (a) in
       a central location.

       As the state notes, nothing in § 508.1411 creates a reasonable expectation in applicant’s

release to parole. However, the issue raised here is not release to parole, but the sufficiency of the
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notice of the reasons for denial of parole.

         Here, applicant sought to invoke the remedy set out in 37 Texas Administrative Code §

145.17. Action upon Special Review–Release Denied. This statute sets out the requirements and

circumstances pursuant to which the Board may be asked to reconsider denial of release: the request

must be in writing and filed with the Board in Austin, and the request will be considered only if the

inmate offers information not previously available to the three-member review panel of the Board,

a board member who voted to deny wants to reconsider, or the two members who voted to deny have

both left the Board. “Information not previously available to the Board” includes “an allegation that

the parole panel has committed an error of law or board rule.”1 37 Tex. Admin. Code § 145.17(g)(3).

That claim seems to be the one asserted by applicant.2

         The briefs of both respondent and the amicus curiae assert that, by requesting the Board to

review its decision, applicant is challenging the decision of the Board, which makes applicant’s

claim a request for a discretionary decision. This is a mischaracterization of applicant’s claim. The

reasons for denying or approving parole are within the unfettered discretion of the Board, and

applicant has not claimed otherwise. But applicant has a statutory right to be informed of the

specific reasons that formed the basis for the denial of his parole. The Board is required by §

508.1411 to give applicant notice of its decision, as well as the reasons why applicant was denied

parole in clear, understandable language that contains only the specific reasons why applicant, in




         1
             Oddly, “[i]f the denial decision was based upon erroneous information or an administrative file processing
error, this rule does not apply.” 37 Tex. Admin. Code § 145.17(a).

         2
           After he had been denied parole in 2014, applicant explicitly asserted that ground in his application for a writ
of habeas corpus.
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particular, was denied parole and not other reasons that do not apply to applicant.3

         Applicant asked for clarification of the denial letter and received a response from the Board

that included a general denial of applicant’s claims as well as a specific denial that asserts that,

because the Board’s decision whether to release applicant to parole is discretionary, the Board is

required only to provide notice of the denial.4 The plain language of § 508.1411 is contrary to that

position. We also find that § 145.17 does not provide to applicant an adequate remedy at law unless

the Board interpreted its own failure to comply with § 508.1411 to be an “error of law,” and its

answer to applicant indicated that it had not done so. Boiler-plate recitation of Board guidelines is

insufficient.

         We take judicial notice of the website of the Board, which contains the Board’s current notice

to applicant of denial of parole.5 That notice is dated March 17, 2016, and is more specific than the

previous notices provided to applicant.

         1D Criminal history - The record indicates that the offender has repeatedly
         committed criminal episodes that indicate a predisposition to commit criminal acts
         upon release.



         3
           The Board may refuse to state its reasons for denying parole if it can properly invoke § 508.1411(b):
         (b) In a written statement produced under Subsection (a), the parole panel may withhold information that:
                   (1) is confidential and not subject to public disclosure under Chapter 552; or
                   (2) the parole panel considers to possibly jeopardize the health or safety of any individual.
         (c) The board shall keep a copy of each statement produced under Subsection (a) in a central location.

         4
            A letter over the signature of the then-Presiding Officer, Rissie Owens, dated July 3, 2014, cited, as a basis
for the Board’s position, Texas Government Code Section 508.144(b), which does not apply to the instant application.
The letter went on to assert that, “prior to SB 909, the [Board] understood the need to provide [notice]” and, since 1989
it has been the Board’s policy to notify an inmate of the reasons for the denial. “As it relates specifically to denials, each
and every offender regardless of the parole guidelines implications receives a written reason for the parole panel’s or
board’s decision to deny parole.” (Emphasis in original.) The notice provided under that policy contains only the boiler-
plate language of the Board’s guidelines.

         5
            The record does not contain the letter that the Board sent to applicant, but based on the notice posted on its
website, it seems likely that applicant received the same notice that is posted on the website.
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       2D Nature of offense - The record indicates the instant offense has elements of
       brutality, violence, assaultive behavior, or conscious selection of victim’s
       vulnerability indicating a conscious disregard for the lives, safety, or property of
       others, such that the offender poses a continuing threat to public safety.

       5D Adjustment during periods of supervision - The record indicates unsuccessful
       periods of supervision on previous probation, parole, or mandatory supervision that
       resulted in incarceration, including parole-in-absentia.

                                           Conclusion

       The record shows that the Board has revised its denial letter to conform to the changes made

to the statute by the legislature, which required the Board to state the reasons why the individual

inmate was denied parole.

       Applicant has received that remedy he sought. Relief is therefore denied.



Delivered: November 2, 2016
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