Ex Parte Ruiz

750 S.W.2d 217, 1988 Tex. Crim. App. LEXIS 81, 1988 WL 40706

• Court: Court of Criminal Appeals of Texas
• Decided: May 4, 1988
• Docket: 69933
• Status: Published

Opinions

OPINION

McCORMICK, Judge.

This is a posfrconviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. The applicant was convicted of possession of marihuana. Punishment was assessed at eighteen years’ in the Texas Department of Corrections. The judgment reflects that the date of the commission of the offense was October 2, 1986.

In the present application, applicant contends that he is being denied consideration for the grant of additional good time credits from the Department of Corrections pursuant to the Prison Management Act (hereinafter the PMA), Article 6184o, V.A. C.S. Applicant contends that he was eligible for consideration for the time under the original act but not under the 1987 amendments to the act. We are of the opinion that applicant is entitled to such consideration.

In Ex parte Rutledge, 741 S.W.2d 460 (Tex.Cr.App.1987), we held that the list of ineligible offenses contained in the 1987 amendments to the PMA may not be applied retroactively to one who committed his or her crime prior to the effective date of those amendments. Here the commission date was plainly prior to those amendments. Therefore, under Ex parte Rutledge, supra, applicant is entitled to such consideration. This holding does not entitle applicant to an automatic grant of the time credits which were denied him, nor to immediate release on parole even if the grant of additional time credits would make him eligible for parole release. The decision to grant time credits must be made within the framework of the Prison Management Act and the decision to release an inmate on parole, even though eligible, remains within the sound discretion of the Texas Board of Pardons and Paroles.

In addition to the brief filed by the pro se applicant, the State Prosecuting Attorney’s Office has filed a motion moving this Court to file and set the applicant’s petition. The motion does not seek to reliti-gate the issues decided in Ex parte Rutledge, but prays that this Court advise the State on the proper procedures to be used in implementing the PMA. In contrast, the applicant only addresses the narrow question of the retroactive application of the 1987 eligibility requirements. Applicant does not take issue with the procedures used to fix the amount of the awards to be given to inmates who have been determined to be eligible. We find, therefore, that the “relief” requested by the State is not within our jurisdiction. It is well-established that this Court is without constitutional or statutory authority to consider certified questions or render advisory opinions, except as provided by T.R.A.P. Rule 214. Warren v. State, 652 S.W.2d 779, 781 (Tex.Cr.App.1983); Trevino v. State, 655 S.W.2d 209, 210 (Tex.Cr.App.1983). We, therefore, refuse to address the State’s contentions.

Habeas corpus relief is granted to the extent that the Department of Corrections must consider applicant for the grant of additional good time credits pursuant to the Prison Management Act.

It is so ordered.

Copies of this opinion will be sent to the Texas Department of Corrections and the Texas Board of Pardons and Paroles.

ONION, P.J., dissents.