

 


 




IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 74,722


EX PARTE LUCIAN LEE SPANN




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM DALLAS COUNTY



 KELLER, P.J., filed a dissenting opinion in which HERVEY, J., joined.

DISSENTING OPINION


	I agree with much of the Court's reasoning but must disagree with the amount of time credit
granted.  The Court orders that applicant be awarded "street-time credit equal to the time he spent out on
parole for this cause."  As I will explain below, applicant is entitled to credit for some of his street time, but
not for all of it.
A. Principles of statutory construction

	 When interpreting a statute, we employ the familiar Boykin standard. (1)  In short, we give effect to
the plain meaning of the statutory text when possible, and make use of extratextual factors only when we
must. (2)  I turn to the statute before us.
B. The statute

	The statute provides in relevant part:
(b) If the parole, mandatory supervision, or conditional pardon of a person described by
Section 508.149(a) is revoked, the person may be required to serve the remaining
portion of the sentence on which the person was released.  The remaining portion is
computed without credit for the time from the date of the person's release to the date of
revocation.

(c) If the parole, mandatory supervision, or conditional pardon of a person other than a
person describe by Section 508.149(a) is revoked, the person may be required to serve
the remaining portion of the sentence on which the person was released.  For a person
who on the date of issuance of a warrant or summons initiating the revocation process is
subject to a sentence the remaining portion of which is greater than the amount of time
from the date of the person's release to the date of issuance of the warrant or summons,
the remaining portion is to be served without credit for the time from the date of the
person's release to the date of revocation.  For a person who on the date of issuance of
the warrant or summons is subject to a sentence the remaining portion of which is less
than the amount of time from the date of the person's release to the date of issuance of the
warrant or summons, the remaining portion is to be served without credit for an amount
of time equal to the remaining portion of the sentence on the date of issuance of the
warrant or citation. (3) 

Some observations about the statute are in order.  First, there are three classes of people described in these
subsections: (1) an "aggravated" offender (one who is described by §508.149(a)); (2) a "non-aggravated"
offender who has more time left on his sentence than he has served on the street; and (3) a non-aggravated
offender who has less time left on his sentence than he has served on the street.  Second, for street-time-credit purposes, the statute appears to treat the first two classes the same, while the third class is treated
differently.  Third, the statute appears to treat the third class more leniently than the first two; that is, the
statute affords to the third class of persons time credit that is not available to the first two classes.  Fourth,
the statute contains parallel language used in conjunction with all three classes of people.  Specifically, the
phrases "remaining portion" and "without credit" are used with all three classes in a parallel fashion.  Any
interpretation of the statute should take into account all four of these observations, especially the parallel
language, which is the crux of the  present statutory construction problem.
C. "remaining portion"

	As the Court correctly observes, construing the phrase "remaining portion" to mean "remaining
portion at the time of release" would render much of the statute meaningless because no one would ever
receive time credit under subsection (c).  The Court therefore interprets "remaining portion" uniformly to
refer to the portion of the sentence remaining on the date the parole revocation warrant or summons issued. 
I believe, however, that the phrase refers to different things when it is employed in different parts of the
statute.  I have indicated my understanding above, with the italicized "remaining portion" phrases referring
to the portion of the sentence remaining on the date of release (the "big remainder") and the bolded
"remaining portion" phrases referring to the portion of the sentence remaining on the date the warrant or
summons issued (the leftover bit).  I will not, at this juncture, address my reasons for this understanding,
because the issues in this case are complicated enough, and there is a more important issue I wish to focus
upon. 
D. "without credit"

	The meaning of the phrase "without credit" is critical to assessing the amount of time credit due
under §508.283, but the Court does not say what the phrase should mean.  The fact that the Court awards
all time spent on the street means that the phrase "without credit" is being applied to something other than
street time.  If an inmate gets credit for time served in prison (which he does), and for all street time (which
he does, according to the Court), the only time period left to which "without credit" can apply is the time
remaining after the warrant issues (the leftover bit).  In other words, the Court holds that all time is credited
except time covered by the "without credit" phrase.  While I believe the statutory language clearly suggests
a different interpretation, rendering resort to extratextual sources of construction unnecessary, my
interpretation is also in accord with extratextual factors.
1. Plain meaning

	The Court's interpretation does not take into account the specialized meaning that time credits have
in the legal system and the specialized meaning attaching to a legislative directive to deprive a person of time
credits.  When the Legislature permits the giving of calendar time credit, that credit is always for time served
in some capacity. (4)  And when the Legislature permits or requires denial of calendar time credit, that denied
time credit relates to time already served by the defendant.  Aside from the statute at issue here, two
statutory provisions involve legislative permission for denying calendar time credits: 1) confinement served
as a condition of community supervision, which is never credited, (5) and 2) confinement in the county jail
pending revocation of a state jail felony probation, which can be credited or denied credit in the trial court's
discretion. (6)   I am not aware of any statute in which the Legislature speaks of denying calendar time credits
for time that was never served in any capacity, but the Court's construction of the statute here implies that
the Legislature has done so for cases in which §508.283(c) applies.
	But I believe that §508.283(c) conforms to legislative custom regarding the denial of calendar time
credits.  Standing alone, the wording concerning the third class of offenders may be confusing.  But the
legislative usage becomes clear upon examining the language relating to the first two classes.  For those
classes, the remaining portion of the sentence is computed or served "without credit for the time from the
date of release to the date of revocation" (i.e., without credit for street time). (7)  The provisions say nothing
about the time after revocation.  Does that mean the offender gets credit for the time remaining after
revocation, even though that time has not been served in any shape, form, or fashion?  Of course not.  The
Legislature does not have to affirmatively deny credit for time that has never been served in any capacity. 
It is only when time has been served in some manner that the Legislature is called upon to specifically allow
or disallow credit for that time.  So, for the first two classes, the Legislature has disallowed credit for the
time from the date of release to the date of revocation - time that is served on the street under supervision. 
The time after revocation, that has yet to be served, is not specifically referred to because there is no need
to take any action to prevent that time from being credited.  Just as the statute does not address time served
under incarceration, the statute does not address time not yet served.  
	 To illustrate how this works, consider the following hypothetical: a convicted person is sentenced
to eleven years in prison, gets paroled after four years, and is revoked three years later.  The following
chart (Chart 1), depicts the sequence of events and how the time credits are calculated for each event:

Chart 1
Class 1 and 2 offenders
How the time credit statute works under the statutory language


		           release	               revocation
____________________|_______________|____________________
	4 yrs			3 yrs			4 yrs
       prison time	         street time	    time not yet served

____________________|_______________|____________________
        credited		         not credited	       not credited
 
         (because it was           ("without credit"       (because it is                                      
     served) 			language,     	         not yet served)
                                               508.283(b), (c))    

	According to the statute, the defendant in this hypothetical has seven years time remaining at the
time of revocation.  He gets credit for the four years that he actually served, but he does not get credit for
the three-year time period occurring between release and revocation because the time credit statute says
so, and he does not get credit for four-year time period after revocation because he has not yet served it. 
	Treating the statutory language consistently requires the same interpretation for the parallel "without
credit" language relating to the third class of offenders.  In other words, the phrase "without credit for an
amount of time equal to the remaining portion of the sentence on the date of issuance" should be construed
to deny credit for a period of time that has already been served in some fashion.  To illustrate an
interpretation that respects the parallel language, I modify the hypothetical to fit the third class of offenders:
a convicted person is sentenced to eleven years in prison, gets paroled after four years, and is served with
a revocation warrant four years later.  Chart 2 depicts the sequence of events and how the time credits
should be calculated:Chart 2
Class 3 offenders
How the time credit statute works under the statutory language

						revocation
		           release	                         warrant
____________________|____________________|_______________
	4 yrs			     4 yrs		      3 yrs
       prison time	              street time	          time not yet served

____________________|_____|_______________|_______________
        credited		    credited       not credited	not credited
                                       1 yr             3 yrs                                                 

      (because it 	(street time    ("without credit"   (because it is 
        was served)          minus time       language,  	     not yet served)
                                   "w/o credit")     508.283(c))


	Under the Court's interpretation of the statute as it relates to the third class of offenders, however,
all time is credited except for the time encompassed by the "without credit" clause.  A graphical depiction
of the Court's interpretation appears in Chart 3: 




Chart 3
Class 3 offenders
How the time credit statute works under the Court's interpretation

						revocation
		           release	                         warrant
____________________|____________________|_______________
	4 yrs			     4 yrs		      3 yrs
       prison time	              street time	          time not yet served
____________________|____________________|_______________
        credited	                         credited                        not credited     		                                	
       (because it 	        ("big remainder" minus    ("without credit"	 
       was served)                    "w/o credit" time)           language, 508.283(c)
	The problem with this interpretation is that absurd results occur if it is applied evenhandedly to the
first and second classes of offenders.  For these offenders, the statute says, "without credit for the time from
the date of the person's release to the date of revocation"(i.e., street time).  If the only time not credited
is the time covered by the "without credit" clause, then the first and second class offenders - the ones who
are not supposed to get the time credit received by the third class - will get credit for everything else, which
includes the time not yet served on their sentences.  Applied to the first hypothetical, the Court's
interpretation would result in the defendant having only three years left on his sentence, instead of the four
years contemplated by the Legislature:











Chart 4
Class 1 and 2 offenders
How the time credit statute works under the Court's interpretation

		           release	               revocation
____________________|_______________|____________________
	4 yrs			3 yrs			4 yrs
       prison time	         street time	    time not yet served
____________________|_______________|____________________
        credited		         not credited	       credited
        (because it was           ("without credit"       ("big remainder" minus                        
   served) 			language,   	       "w/o credit" time)
                                               508.283(b), (c))    
 
What is most telling about this interpretation is that the sooner the defendant gets revoked, the more time
credit he gets.  If the eleven-year-sentence hypothetical is modified so that the defendant gets revoked after
spending only a year on the street, then the defendant obtains six years credit instead of four:
Chart 5
Class 1 and 2 offenders
How the time credit statute works under the Court's interpretation

		           release	 revocation
____________________|_____|______________________________
	4 yrs		     1 yr		6 yrs
       prison time	  street time	    time not yet served
____________________|_____|______________________________
        credited		      not 	         credited
        			    credited
     (because it was         ("without credit"    ("big remainder" minus                                
    served)                   language,              "w/o credit" time)
			      508.283(b)(c))	      	                                          

The Court's interpretation creates results that are the exact opposite of the manifest legislative intent.
	The complexity of the language "without credit for an amount of time equal to the remaining portion
of the sentence on the date of issuance" is a further reason to reject the notion that the Legislature simply
wanted to confer credit for all street time.  There are much simpler and clearer ways to convey such a
directive, had that been the intent.  The Legislature could have paralleled the language in the first part of
subsection (c) and simply said "with credit" rather than "without credit" for time from the date of release
to the warrant date.  The Court's interpretation of the statute suggests that the language is awkward and
confusing, while my interpretation shows that the language is complex but clear.
	There is no reason for the Legislature to address the issue of time credit for time that has not been
served.  And there is no reason for the Legislature to negatively word a grant of time credit unless the
Legislature were withholding something in the process.  Under the Court's interpretation of this language,
the Legislature withholds nothing.  Moreover, even if one were to assume that the Legislature might use
negatively worded language for this purpose, the Court's interpretation does not  account for the presence
of the language "an amount of time equal to."  The Legislature could have simply stated: "without credit for
the remaining portion of the sentence on the date of issuance."  In fact,  the Legislature has shown that it
does not need to use the words "an amount of time equal to" to refer to a specific time period that is not
to be credited.  It did not use those words in connection with the first and second classes of offenders when
it provided that such offenders would serve their sentences "without credit for the time from the date of the
person's release to the date of revocation."  When the Legislature wants to withhold credit for a particular
period of time, it simply refers to that time period, not to a "an amount of time equal to" that time period. 
The use of the words "an amount of time equal to" means the statute does not refer to that time period, but
to a different time period from which an equal amount of time is to be deducted.
	Finally, my interpretation shows that the Legislature's treatment of the third class of offenders
dovetails nicely with its treatment of the second class.  The Legislature has set up a sliding scale, in which
the offender gets more credit for street time the longer he successfully remains on the street.  The sliding
scale works by requiring the offender to serve double his remaining time  (i.e. his remaining time + an
amount equal to his remaining time), which essentially means that the offender will get two days of street
time credit for every day of street time he serves past the mid-point.  But this method of doubling an
offender's remaining time works only where the offender's street time exceeds the amount of time left.  If
the offender's street time is less than the amount of time left, doubling the time left would actually result in
taking away time served under incarceration, as shown in Chart 6:
Chart 6
Class 2 offenders
How the time credit statute would work if rules for Class 3 offenders
were applied to Class 2 offenders

		           release	               revocation
____________________|_______________|____________________
	4 yrs			3 yrs			4 yrs
       prison time	         street time	    time not yet served

_______________|____________________|____________________
   3 yrs    credited	4yrs   not credited	       not credited        
        (1 yr prison           ("without credit"           (because it is                                         
     time lost) 	     language,    	      not yet served)
                                         508.283 (c))    

Of course, the Legislature did not intend to take away time served under incarceration.  So, the Legislature
treats offenders in the second class under a provision that gives no street time credit - the same outcome
that would be reached under the legislative formula for the third class of offenders, since that formula would
yield no (positive) credit for members of the second class.  
	My interpretation also solves a gap in the statute: what to do with an offender whose street time
equals his remaining time.    The statutory language refers only to persons with street time that is "greater
than" or "less than" the remaining time.  Consider the case of an offender sentenced to twelve years,
released after four years, and served with a summons or warrant exactly four years later.  Must we pinpoint
by the hour or the minute whether he has served more or less, so that we can determine whether he gets
a lengthy time credit?  Not if we recognize that the provisions applicable to class three offenders are
intended to dovetail with those applicable to the second class.  Applying the formula for class three
offenders to a midpoint offender would yield a result of exactly zero credit, so he would not get any street
time credit:
Chart 7
Mid-point offenders
How the time credit statute works under the statutory language

		           release	               revocation
____________________|____________________|____________________
	4 yrs			4  yrs		 	         4  yrs
       prison time	         street time	                time not yet served

____________________|____________________|____________________
        credited		         not credited	                not credited      
        (because it was           ("without credit"              (because it is                                
     served) 			language,     	              not yet served)
                                               508.283(c))    


And this would not be a harsh result under my interpretation because of the sliding scale nature of the
credit.  For example, a person who serves only one day past the midpoint would get only two days time
credit, rather than the four years and one day credit he would receive under the Court's analysis.
	In summary, under §508.283(c), "non-aggravated" offenders receive two days of time credit for
every day of street time served past the mid-point of the supervision period.  The time is credited in this
fashion because 1) the offender is required to serve the time not yet served, and 2) the offender gets no
street time credit for an amount of time equal to the time not yet served.  This interpretation is the only
interpretation that makes sense in light of the language in the statute.  
2. Extratextual factors

	As mentioned above, Boykin requires a plain meaning analysis before extratextual factors may be
considered.  Only an ambiguity or absurd result justifies inquiry beyond the language of the statute.  The
language of §508.283, while complex, is not ambiguous on this point, and the inquiry should end.  But, in
case an ambiguity in the language might be perceived, I have reviewed the testimony in the House
committee hearing cited in the Court's opinion. That testimony supports my interpretation of the statute,
rather than the Court's.  
	Representative Pete Gallego introduced the bill - House Bill 1585 (8) -  as "technical" and requiring
illustration with a diagram:
1585 is a little more technical.  And let me - this is kind of a combination of my
background when I got here as a prosecutor and then my subsequent experience on
Appropriations.  Each of you should have, essentially, a little diagram that looks a little bit
like this about what the bill seeks to do.  And when it may - It's a lot easier for me to
explain using the diagram. (9)

He then presented a base hypothetical, involving someone sentenced in 1990 for ten years, released in
1994, and revoked in 1999, and explained how that person would be treated under the law in effect at the
time:
Right now, under the current law, you take a penal offense and you say that the person
was sentenced to ten years.  And let's say, because I'm not real good at math, I had to do
it starting from 1990 to essentially 2000, so I would not have to do much math.  So your
sentence is ten years.  So, in theory, if you start in 1990 and you go to 2000, but you've
done well in the prison system and essentially you've behaved, and so you're released in
1994.  So you've served four years.  Remember that you have a ten-year sentence.  So
you go along for five years, and in 1999 you're revoked.  Well you're still a year left of
your sentence.  You've served four, you're released on parole for five, and with one year
left, you did something wrong.  So, under the current law, your discharge date moves five
years, and is calculated from the date of your release.  So, when you were released in '94,
you still had essentially six years left.  So, if you were revoked in '99, you still have to do
- your discharge date moves up to 2005. (10)

Although I do not have the charts from that hearing, I can reconstruct one from this testimony:							         original	        end date
    sentenced		  released		      revoked   end date         after revocation
        1990		     1994		         1999   2000		           2005
	|________________|____________________|____| _ _ _ _ _ _ _ _ _ _ _ _ _|
	          credited                 not credited		   not      discharge date moved 
							   yet	          five years
							   served    	   
	|________________|____________________|_____ _ _  _ _ _ _ _ _ _ _ _ _ |
							       six years time remaining	
								after revocation

	Representative Gallego then remarked that his proposal would treat violent offenders the same as
the existing law but treat nonviolent offenders differently. (11)
	He then explained the effect of the proposed law.  If the amount of time remaining when the warrant
issued was greater than the offender's street time, there would be no street time credit:
What this bill does is you take that same ten year offense and you're still sentenced in '90,
you're still released in '94.  Let's say that there is a warrant two years later that's issued
for you to come back because your parole has been revoked.  You've still got four years
left.  That four years is - the remaining portion of your sentence is greater than your release
period.  And so what happens is your discharge date is moved up two years because it is
calculated from the date of the issuance of the warrant. (12)

The following diagram conforms to his testimony:
							    original       new
    sentenced		  released     warrant   	    end date      end date
        1990		     1994         1996		      2000         2002
	|________________|________|________________| _ _ _ _ _|
	          credited              not 	   not yet served	discharge 
				credited		            date moved 
							             two  years
 
	|________________|________| ________________ _ _ _ _ _|
				                  six years time remaining
						after revocation

	In testimony immediately following the quoted portion, Representative Gallego explains how to
calculate time credit for an offender whose time remaining is less  than his street time:
If the remaining portion is less than the release period, then essentially one year is added. 
And that's coming on the next page.  And I can see that I am kind of losing you all, and
so perhaps the best person to explain this would be Mr. Rodriguez, who essentially lives
with this, I think on a regular basis. (13)

The Court interprets this passage as meaning that the offender has one year left to serve.  But
Representative Gallego is saying that one year is added to the offender's discharge date.   The offender to
whom he refers - the one with less time remaining than street time - is the one in the original hypothetical. 
This is the offender who was sentenced in 1990, released in 1994, and revoked in 1999.  Instead of adding
five years to the offender's discharge date, as the old scheme would have done, House Bill 1585 would
add only one year to the discharge date - resulting in a discharge in 2001.  So the offender would have two
years left to serve: the one year he hasn't yet served plus an amount of time equal to that one year.  
	Representative Gallego recognized that the proposed scheme was complicated (which would not
be the case if the offender with less remaining time were simply given all of his street time) and deferred to
Victor Rodriguez, the Chairman of the Board of Pardons and Paroles, for a more detailed explanation:
I'll let Mr. Rodriguez explain, actually, in much more, I guess, user friendly terms, and kind
of tell you about some of the charts they did at my request to kind of help explain this. (14)

	Chairman Rodriguez went back to the original hypothetical and explained how the law in effect at
the time would add five years to the hypothetical offender's discharge date:
Under current law, all offenses are subject to this process: If you get a ten year sentence,
and supposing you follow this chart and you begin it in 1990, theoretically your discharge
is in the year 2000.  Under current law, under this scenario, if you were released on a date
in between - in this case 1994 - and then in 1999 you were revoked, then in accordance
with law, the remaining portion of your sentence is recalculated without credit for the time
that you were out on supervision.  So, in applying current law, under this scenario, when
the discharge date is recomputed, the new discharge date would move forward by about
five years. (15)

Chairman Rodriguez later explained how the discharge date for this hypothetical situation would be
calculated under House Bill 1585:
On the next page, under 1585, it states that, if the amount of time remaining at the time of
the warrant is less than the amount of time you've been out, then upon revocation, the
remaining portion shall be recomputed without credit for an amount equal to the amount
of time remaining on your sentence on the date of your warrant.  And this is the illustration
under the second page here.  For example, in that second page illustration, this is an
individual that's cleared all the hurdles.  He had one year left on the date of warrant. His
new discharge date would be 2001, as opposed to 2005. (16)

In other words, the calculation works exactly as I have stated it should in the plain meaning analysis of this
opinion, as illustrated above in Chart 2.  A chart depicting Chairman Rodriguez's testimony would be as
follows:							                       original   new
    sentenced		          released		          warrant end date  end date      
        1990		             1994		        		   1999  2000   2001
	|____________________|_________________________|_____| _ _ _ _|
	                           					         not       discharge moved
								         yet        one year
		           						         served
	|____________________|____________________|_____|_____ _ _ _ _|
                 	credited		credited		no       two years time  	
							          credit    remaining after   
								           revocation warrant

	I will mention one other extratextual reason for rejecting the Court's interpretation: the
consequences of a particular construction.  Under the Court's interpretation, offenders with the same
sentence could have widely different time credits based on a difference of only a few days' street time.  For
example, an offender released with ten years left on his sentence could get credit for over five years if he
serves five years and one day on release, while a similarly situated offender who serves two days less than
the other offender would receive no credit at all.  Under the actual statutory scheme, however, the time
credit is graduated, so that the two days' difference results in only two days' time credit.  An offender is
rewarded with progressively more time credit the longer past the mid-point he successfully serves on
release.
	These consequences are yet another reason to interpret an ambiguous statute to impose a
graduated time credit scheme.  But there really is no ambiguity here.  The language of the statute is clear,
and so is the legislative history.  I respectfully dissent.
								KELLER, Presiding Judge
Date filed: April 21, 2004
Publish  
1.   Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).
2.   A plain meaning analysis includes construing words in accordance with any technical or
particular meaning acquired by legislative definition or otherwise, TEX. GOV'T CODE §311.011(B),
and giving effect to all the language in the text if reasonably possible.  Campbell v. State, 49 S.W.3d
874, 876 (Tex. Crim. App. 1991).   
3.   TEX. GOV'T CODE §508.283(b), (c)(italics and bold-face type added).  I shall explain
below the reason for the italics and bold-face.
4.   See TEX. CODE CRIM. PROC., Art. 15.18(a)(2)(credit for time served), 42.01
§1(18)(same), 42.03 §2(a)(credit for time "spent in jail in said cause"), 42.03 §3 (credit for time spent
in jail pending appeal), 42.031 §3(b)(credit for time spent on work release), 42.09 §§1 & 7 (credits
earned under Article 42.03 applied to sentence), 42.12 §15(h)(2) & (3)(credit for time spent in county
or state jail pending revocation)
5.   TEX. CODE CRIM. PROC., Art. 42.03 §2(a).
6.   TEX. CODE CRIM. PROC., Art. 42.12 §15(h)(2).  But the Equal Protection Clause of the
Fourteenth Amendment requires that the time be credited where the offender "was unable to post bond
due to his indigence and . . . was sentenced to the maximum sentence."  Ex Parte Harris, 946 S.W.2d
79, 80 (Tex. Crim. App. 1997).   
7.  §508.283(b), (c)(emphasis added).
8.   As the Court notes, although H.B. 1585 was vetoed, the exact language was in H.B. 1649. 
H.B. 1649 was a more comprehensive parole bill.
9.   H.B. 1585, House Comm. on Corrections, 77th Leg., R.S. (Mar. 6, 2001) (audio at
http://www.house.state.tx.us./committees/audio77/200.htm beginning at 1:17:25).  All quotations from
the hearing are exact, except for the omission of repetitive phrases and of crutch words such as "uh,"
"um," and "okay."
10.   Id. (beginning at 1:18:05).
11.   Id. (beginning at 1:20:14).
12.   Id. (beginning at 1:21:08).
13.   Id. (beginning at 1:22:01).
14.   Id. (beginning at 1:22:49).
15.   Id. (beginning at 1:25:11).
16.   Id. (beginning at 1:28:50)(emphasis added).
