










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-74,877


EX PARTE JASON SCOTT WALKER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS 
FROM HARRIS COUNTY


Cochran, J., filed a concurring opinion.


	I reluctantly join the majority opinion.  The result in this case is not "fair."  But I agree
that the trial court had the discretion to make findings that support this Court's conclusion
that applicant is not entitled to credit for the time he spent in jail awaiting transfer to a
SAFPF (1) as a condition of his community supervision.
	The problem in this case is that the trial court ordered a very appropriate community
supervision condition-participation in a secure-facility drug rehabilitation program-but there
was no room available in the program at the time the trial court entered his order.  The trial
court ordered applicant to be transferred to a SAFPF on July 26, 2000.  That is the date upon
which he wanted applicant to begin his drug rehabilitation program.  Nonetheless, the trial
judge did not have control over when a space at a SAFPF would become available. 
Therefore, he had two options:  1) require applicant to stay in custody at the local jail until
space was available in a SAFPF; or 2) release him into the community, knowing that such
a release-without sufficient supervision or immediate mandatory drug treatment-would
significantly diminish the likelihood that applicant could be found or would willingly appear
when SAFPF space did become available.  Neither of these options is entirely satisfactory. 
	As it turned out, applicant had to wait 119 days-almost four full months-in the local
jail before a space in a SAFPF was available.  This is 119 days for which applicant lost his
liberty.  This is 119 days for which applicant was not participating in any drug rehabilitation
program as a part of his community supervision.  This is 119 days of "thumb-twiddling" lost
in legal limbo.  And it counts for nothing.  This is not a "fair" result.  But it is countenanced
by Texas precedent (2) and statute.
	Under article 42.03, § 2(a) of the Code of Criminal Procedure, a trial judge shall give
the defendant credit for all the time the defendant has spent in jail, "other than confinement
served as a condition of community supervision." (3)  A trial court may order confinement as
a condition a community supervision up to, but not exceeding, 180 days. (4)  Thus, a trial judge
may find that all, some, or none of the time a defendant has spent in jail awaiting transfer to
a SAFPF-up to a maximum of 180 days-was served as a condition of community supervision
(i.e., confinement and treatment in a SAFPF is a condition of community supervision,
therefore time spent in confinement awaiting available space in a SAFPF is a condition of
community supervision).  If the judge finds that this "thumb-twiddling" time was served as
a condition of community supervision, he has the authority to either grant or deny the
defendant credit for that time when the defendant's community supervision is revoked and
he is sentenced to a term in jail or prison.
	In this case, the applicant claims that he is entitled to 119 days credit on his prison 
sentence because the trial judge did not, at the time he ordered applicant to enter the SAFPF,
explicitly state that the jail time awaiting transfer to the SAFPF was a condition of
community supervision.  Applicant fails to cite any statutory provision or legal precedent that
requires the trial judge to make such an explicit finding in his initial SAFPF order.  The trial
judge did, in his Findings of Fact on the writ application, make an explicit finding that
applicant's jail-time credit had been accurately computed.  That explicit finding supports an
implicit finding that the trial judge intended that the "thumb-twiddling" time was a condition
of community supervision.  Therefore, the trial judge had the discretion to deny applicant any
jail-time credit for that 119 days of "thumb twiddling."  Of course, the trial judge could
certainly have decided otherwise:  that the 119 days in the county jail was not, in fact, a
condition of community supervision.  It was merely "lost in limbo" time that served no
legitimate purpose and had no independent rehabilitation value.  Because the trial judge
could decide this question either way, and his initial written Conditions of Community
Supervision would support either conclusion, I cannot say that he abused his discretion in
denying applicant jail-time credit.
	Therefore, I join the majority.
Cochran, J.
Filed: December 1, 2004
Publish
1.  Substance Abuse Felony Punishment Facility.  See Tex. Code Crim. Proc. art. 42.12, §
14(a).  A SAFPF is a type of community corrections facility.  Tex. Gov't Code § 509.001(1)(C).
Under Texas statute, a defendant is not entitled to credit on his sentence for time spent in a
community corrections facility.  Tex. Code Crim. Proc. art. 42.12, § 18(c) (defendant may not
"apply time spent in a community corrections facility toward completion of a prison sentence if
the community supervision is revoked").  Citing an earlier version of article 42.12, this Court has
held that a defendant is not entitled to credit for the time he has been under custodial care in a
SAFPF.  Ex parte Stover, 946 S.W.2d 343, 345 (Tex. Crim. App. 1997).
2.  See Ex parte Garduno, 956 S.W.2d 823, 824 (Tex. App. - El Paso, pet. ref'd)
(upholding order that defendant remain in county jail for indefinite number of days awaiting
transfer to SAFPF).
3.  Tex. Code Crim. Proc. art. 42.03, § 2(a).
4.  Tex. Code Crim. Proc. art. 42.12, § 12(a).
