Cain v. TEXAS BD. OF PARDONS AND PAROLES

104 S.W.3d 215, 2003 Tex. App. LEXIS 2836, 2003 WL 1738404
CourtCourt of Appeals of Texas
DecidedApril 3, 2003
Docket03-02-00106-CV
StatusPublished
Cited by8 cases

This text of 104 S.W.3d 215 (Cain v. TEXAS BD. OF PARDONS AND PAROLES) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cain v. TEXAS BD. OF PARDONS AND PAROLES, 104 S.W.3d 215, 2003 Tex. App. LEXIS 2836, 2003 WL 1738404 (Tex. Ct. App. 2003).

Opinion

OPINION

MACK KIDD, Justice.

Appellant Shane Cain, an inmate incarcerated by the Texas Department of Criminal Justice-Institutional Division, filed a lawsuit seeking a declaratory judgment against appellee, the Texas Board of Pardons and Paroles (“the Board”). See Tex. Gov’t Code Ann. § 2001.038 (West 2000) (authorizing challenge to agency’s rules to be brought in suit for declaratory judgment). Cain is apparently incarcerated under multiple judgments of conviction that run consecutively. 1 By his suit, Cain sought to challenge the validity and applicability of rules used by the Board to determine when an inmate serving consecutive sentences is eligible for parole, contending that although the government code sets a specific, non-discretionary date for parole eligibility, the Board’s rules have “turned this date into a discretionary date to be determined by a parole panel,” thereby exceeding its statutory authority. The Board filed a motion to dismiss Cain’s suit, contending that Cain’s claims were frivolous and that he had not complied with the procedural requirements of chapter 14 of the civil practice and remedies code, which governs in forma pauperis inmate litigation. 2 See Tex. Civ. Prac. & Rem.Code Ann. §§ 14.001-014 (West 2002). Specifically, the Board argued that Cain’s lawsuit lacked an arguable basis in law and that Cain had not filed the required affidavit describing his previous lawsuits, attempted to use the grievance system, or filed a *217 certified copy of his trust account statement. See id. §§ 14.003(b)(2), .004, .005(a), .006(f); Tex. Gov’t Code Ann. § 501.008 (West 1998). The trial court signed an order dismissing Cain’s lawsuit with prejudice as frivolous and additionally because Cain had not exhausted his administrative remedies or filed a certified copy of his trust account statement. Tex. Civ. Prac. & Rem.Code Ann. §§ 14.005(a), .006(f). Cain appeals, arguing that his claims did not lack an arguable basis in law and that he complied with the relevant portions of chapter 14. We will affirm the trial court’s judgment dismissing Cain’s suit.

The Board is vested with the power and duty to determine whether and when an inmate should be released on parole, conditions of parole, which parolees should be released from supervision, and whether parole should be continued, modified, or revoked. Tex. Gov’t Code Ann. § 508.044(b) (West Supp.2003). The Board “may adopt reasonable rules” related to parole eligibility, the conduct of a parole hearing, or parole conditions. Id. § 508.044(d). The Board is also to develop guidelines on which to base parole decisions. Id. § 508.144(a) (West 1998).

An inmate not sentenced to death or a life term and not convicted of particular enumerated offenses is eligible for parole “when the inmate’s actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.” Id. § 508.145(f) (West Supp.2003). Once an inmate reaches that point, he or she is eligible for parole consideration; section 508.145(f), however, does not mandate that the inmate be released on parole. When the inmate accrues sufficient time-served credit, the Board determines whether to grant or deny parole. See id. § 508.044(b). When an inmate is sentenced to consecutive felony sentences, “a parole panel shall designate during each sentence the date, if any, the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.” Id. § 508.150(a) (West 1998). Other than the last of multiple sentences, one of a series of sentences ceases to operate either when the actual time served equals the sentenced imposed or on the designated date on which the inmate would have been eligible for release on parole had he or she been sentenced to a single sentence. Id. § 508.150(b). An inmate serving consecutive sentences is only eligible for parole after the date of eligibility for release from the last sentence imposed, and the Board may not “consider consecutive sentences as a single sentence for purposes of parole.” Id. § 508.150(c).

Title 37 of the Texas Administrative Code contains rules promulgated by the Board. See 37 Tex. Admin. Code §§ 141.1-150 .56 (2002) (Public Safety & Corrections). Cain attacks sections 141.111(15) and (16) and 145.13(c)(2) and (3), arguing that section 508.145(f) of the government code gives him “the right to be ‘eligible for release on parole’ on a specific and non-discretionary date,” and that the rules have turned that specific date “into a discretionary date to be determined by a parole panel,” thus exceeding the Board’s authority.

Section 141.111 is titled, “Definitions.” The relevant portions read as follows:

(15) CU/FI—Consecutive felony sentence vote that designates the date on which the prisoner would have been eligible for release on parole if the prisoner had been sentenced to serve a single sentence. This is not a release to parole vote.
(16) CU/NR—Consecutive felony sentence vote to deny favorable parole action and set for review on a fu *218 ture specific month and year (set-off).

Id. § 141.111 (2002). Section 141.111 does not direct or authorize the Board to do anything; it merely defines abbreviations and terms used in other sections of the administrative code. Id. Because it does not authorize any action, Cain’s complaint that section 141.111 exceeds the Board’s authority is misplaced. The trial court did not err in finding that Cain’s suit as it relates to section 141.111 is without merit.

Cain next attacks subsections (2) and (3) of section 145.13(c), contending that by those subsections, the Board has exceeded its authority by taking it upon itself to “vote” to determine dates of parole eligibility. Section 145.13(c) provides that if a parole panel has before it a “pre-final consecutive felony sentencing case,” it may (1) defer a decision for more information; (2) vote “CU/NR,” deny favorable parole action, and set it for future review within three years; or (3) vote “CU/FI” and designate the date within the next three years on which the inmate would have been eligible for parole if he was serving only one sentence. Id. § 145.13(c) (2002). When the case is the last in a series of consecutive sentences, a parole panel shall review the case as if the inmate had been sentenced to a single sentence. Id.

Cain contends that chapter 508 of the government code establishes mandatory dates upon which inmates become eligible for parole; however, parole is a privilege not a right to which an inmate is entitled once he or she accrues a set amount of time-served credit. Id. § 145.3(1) (2002). The Board may deny parole even after an inmate serving a single sentence has earned enough credit to be eligible for parole review. Id. § 145.12(2), (3) (2002).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
104 S.W.3d 215, 2003 Tex. App. LEXIS 2836, 2003 WL 1738404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cain-v-texas-bd-of-pardons-and-paroles-texapp-2003.