             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                          NOS. WR-31,454-03 & WR-31,454-04



                EX PARTE RODNEY ELNESTO SMILEY, Applicant



         ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
     CAUSE NO. C-213-010293-1011284-B IN THE 213 TH DISTRICT COURT
                       FROM TARRANT COUNTY

          CAUSE NO. W94-02594-U(B) IN THE 291 ST DISTRICT COURT
                        FROM DALLAS COUNTY

       Per curiam.

                                         ORDER

       Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure,

the clerks of the trial courts transmitted to this Court these applications for writs of habeas

corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). In 1994, applicant

was convicted of theft in Dallas County and sentenced to twenty-five years’ imprisonment.

In 2006, while he was out of custody on parole, he was convicted of injury to a child in

Tarrant County and sentenced to ten years’ imprisonment.
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       Applicant filed these applications for post-conviction writs of habeas corpus

challenging certain policies employed by the Board of Pardons and Paroles for the purpose

of determining an inmate’s eligibility for release to supervision when he is serving concurrent

sentences. Applicant notes that his theft conviction is subject to the pre-1996 mandatory

supervision statute, while his injury-to-a-child conviction is governed by the current

“discretionary” mandatory supervision statute. Applicant contends that his due-process rights

were violated when the Board of Pardons and Paroles declined to vote on his release to

discretionary mandatory supervision for his injury-to-a-child conviction for more than two

years after he became eligible for such release. The basis for the parole board’s refusal to

consider him for discretionary mandatory supervision release was that he was not yet eligible

for mandatory release on his 1994 theft conviction. Applicant further challenges the parole

board’s refusal to release him to mandatory supervision on his theft conviction once he

became eligible in 2013, with the basis for that decision by the parole board being that

applicant was still incarcerated on the injury-to-a-child case.

       This Court remanded the -03 application for a response from the Texas Department

of Criminal Justice’s Office of the General Counsel and findings of fact and conclusions of

law from the habeas court. In response to applicant’s claims, TDCJ stated that, because

applicant was not entitled to mandatory release on his theft conviction until 2013, it was not

required to take a vote on his release to discretionary mandatory supervision for his injury-to-

a-child conviction until after that date had passed. Furthermore, regarding applicant’s claim
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that he was entitled to mandatory release on his theft conviction in 2013, TDCJ asserted that

an offender may not be released to mandatory supervision until he is eligible for release on

all his sentences. The habeas court forwarded supplemental transcripts, which included

findings of fact and conclusions of law recommending that applicant’s claims be denied.

       This Court consolidated the applications and filed and set this case to address

applicant’s allegations that (1) the Parole Board’s failure to vote on his original discretionary

mandatory release date in a timely fashion violated due process, and (2) TDCJ’s policy of not

“releasing” a prisoner to mandatory supervision on one concurrent sentence until the prisoner

is “eligible for release” on all concurrent sentences is unlawful.

       The briefs were filed in June of 2015. Since that time, it has come to this Court’s

attention that applicant may have been released to parole or, alternatively, discharged his

sentence. The record reflects that applicant’s next parole review was to be held in December

2015. Further, the record reflects that applicant’s ten-year sentence for injury to a child had

a maximum release date of February 8, 2016. Given that applicant’s release to parole or

discharging of his sentence would affect this Court’s resolution of his claims, we order these

applications remanded to the respective habeas courts so that the record may be

supplemented to include the results of applicant’s most recent parole review and to address

whether applicant has discharged his sentence. In particular, the -03 application is remanded

to Tarrant County to enter specific findings as to whether applicant has discharged his

sentence for injury to a child. The -04 application is remanded to Dallas County to enter
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specific findings as to whether applicant has been released to mandatory supervision on his

theft conviction. These applications will be held in abeyance until the trial courts have

resolved the fact issues. The issues shall be resolved within 30 days of the date of this order.

A supplemental transcript containing all affidavits and interrogatories or the transcription of

the court reporter’s notes from any hearing or deposition, along with the trial court’s

supplemental findings of fact, shall be forwarded to this Court within 90 days of the date of

this order. Any extensions of time shall be obtained from this Court.

Delivered: May 18, 2016

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