Ex Parte Spann

132 S.W.3d 390, 2004 WL 840211

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 2004
• Docket: 74722
• Status: Published

Opinions

OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, J.J., joined.

Applicant was convicted on a plea of guilty for the offense of Theft of Property of $750.00 or less, and was sentenced to a 15-year term in prison on July 23, 1991. He was released on parole or mandatory supervision on July 8, 1996 (“RELEASE date”), with an expiration date of May 25, 2006 (just under 10 years).¹ A parole-violator warrant was issued on October 20, 1998, but was subsequently withdrawn on February 5, 1999. Applicant was returned to custody at the Texas Department of Correctional Justice (“TDCJ”) on March 25, 1999, and re-released on January 26, 2000. This detention was for a new conviction, however, and Applicant’s parole was not revoked. On April 19, 2000, another parole-violator warrant was issued, but the warrant was later withdrawn on June 22, 2000. Applicant was again returned to the TDCJ on August 3, 2000, and re-released on January 18, 2001, but Applicant’s mandatory supervision for this cause was not revoked. On August 6, 2001 (“SUMMONS date”), a summons relating to this cause was issued. Then, on September 4, 2001 (“WARRANT/REVOCATION date”), a parole-violator warrant was issued for this cause, and Applicant’s mandatory supervision was revoked on the same date. Applicant applied for street-time credit,² but was denied such credit by the TDCJ street-time credit office on June 18, 2002, “due to not meeting the midpoint.” ³ Applicant then filed this application on August 23, 2002.

Applicant correctly asserts that Texas Government Code 508.283(c) applies to his situation. Tex. Gov’t Code Ann. § 508.283(c) (Vernon 2004). He has no prior or current convictions which would place him under 508.149(a),⁴ and section 508.283(c) applies to “any revocation that occurs on or after September 1, 2001.” Tex. Gov’t Code Ann. § 508.283 (Vernon 2004); see also Parker v. Cockrell, 2002 WL 1996553, *2-3 (N.D.Tex. Aug. 7, 2002). Section 508.283(c) reads:

If the parole [or] mandatory supervision ... of a person other than 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. For a person who on the date of the 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 the issuance of the warrant or citation.

Basically, section 508.283(c) says that certain parole violators will receive street-time credit if the “remaining portion” of their sentence is less than the amount of time they have spent out on parole. Although section 508.283(c) is worded in such a confusing manner, it can be simplified into the following 2-pronged test for the purpose of determining whether Applicant receives street-time credit:⁵

1. If, on the SUMMONS⁶ date, the “remaining portion” of Applicant’s sentence is greater than the time spent on parole, Applicant receives no street-time credit for the time spent on parole.

2. If, however, on the SUMMONS date, the “remaining portion” of Applicant’s sentence is less than the time spent on parole, Applicant receives street-time credit for the amount of time spent on parole.

But the equation cannot be said to be that simple without asking a crucial question: For purposes of determining street-time credit (whether the “remaining portion” of the sentence is greater than the time spent on parole), what does “remaining portion” in 508.283(c) mean? Does “remaining portion” mean merely that part of the sentence which is remaining as of the RELEASE date (without considering the amount of time spent out on parole), or does it mean that part of the sentence remaining at the RELEASE date less the time spent on parole? The difference in these two possible interpretations is more thoroughly examined below.

Legislative History

When interpreting a statute, this Court focuses “on the literal text of the statute in question and attempts] to discern the fair, objective meaning of that text at the time of its enactment.” Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). To assist with statutory interpretation, the legislature has provided Texas Government Code Section 311 (the “Code Construction Act”), which states, “it is presumed that ... the entire statute is intended to be effective.” Tex. Gov’t Code Ann. § 311.021 (Vernon 2004). In addition, a court may consider “legislative history” and the “object sought to be attained” even when an ambiguity does not exist. Id. at section 311.023. However, despite the broad latitude afforded by the legislature, this Court considers “extra-textual factors” such as legislative history only when the plain language of the statute is “ambiguous” or when a literal interpretation would lead to “absurd results.” Boykin, 818 S.W.2d at 785. Because “remaining portion” is subject to two interpretations, section 508.283(c) is ambiguous, and we therefore turn to legislative history to help determine the intended meaning of the statute.

Prior to 2001, section 508.283 prescribed that any parole violator forfeited the benefit of street-time credit.⁷ See Act of July 1, 1999, 76th Leg., R.S., ch. 62, 1999 Tex. Gen. Laws 62 (amended 2001) (current version at Tex. Gov’t Code Ann. § 508.283(c) (Vernon 2004)). But in 2001, section 508.283 was amended, adding substantive changes to the statute. Act of May 08, 2001, 77th Leg., R.S., ch. 1197, 2001 Tex. Gen. Laws 856. The goal of the amendment was to lessen the sentence of non-violent parole violators (versus violent parole violators) whose time spent out on parole exceeded their remaining sentence. Hearing on Tex. H.B. 1585 Before the House Comm, on Corrections, 77th Leg., R.S. (Mar. 6, 2001) (statements of Representative Gallego and Victor Rodriguez) (audio at %vww.house.state.tx.us/commi-tees/audio77/200.htm, begins at 1:17:15).⁸ The amended statute specifically states that certain violent offenders (persons under 508.149(a)) forfeit street-time credit if their parole is revoked. It articulates that if the parole or mandatory supervision “of a person described by Section 508.11/,9(a)” is revoked, then the person does not receive credit for any time out on parole. Tex. Gov’t Code Ann. § 508.283(b) (Vernon 2004) (emphasis added). Before the amendment, that section had not specified any particular class of persons, but had applied to all parole violators uniformly. Id. Additionally, the amended section 508.283(c) provides that, under certain circumstances, some persons (those not falling under provisions of 508.149(a)) retain street-time credit after their parole or mandatory supervision is revoked. Id. Clearly, adding such language was for the purpose of distinguishing and benefitting certain offenders who had completed more than half of their remaining sentence on parole; otherwise, there would have been no reason to change the statute from the original construction.

One can easily see the illogical impact the first possible interpretation of “remaining portion” would have on the effectiveness of section 508.283(c). For example, if “remaining portion” was meant to refer only to the portion of the sentence remaining on the RELEASE date, without credit for time spent on parole, then only in the event that the time spent on parole was equal to or greater than the remaining sentence on the RELEASE date would Applicant receive any street-time credit. Such an outcome simply does not make sense. In Applicant’s situation, he had 10 years of a 15-year sentence remaining on his RELEASE date. He spent over 5 years out on parole. But, in order for him to receive street-time credit for that 5-year period, Applicant would have to complete the entire parole time of almost 10 years (because the remaining portion of the sentence on the RELEASE date — -just less than 10 years — would be greater than any parole period less than that full amount). Applicant would thus have to serve almost 10 more years to finish out his sentence. Such an interpretation would render section 508.283(c) meaningless because it would only credit time where the remaining sentence had already been completed. In fact, under such an interpretation, the amended 508.283(c) would essentially have the same effect as the former section 508.283, and 508.283(c) would thus be superfluous.

On the other hand, if the “remaining portion” is that portion of the sentence remaining on the RELEASE date less time spent on parole, Applicant would have a “remaining portion” of a little over 4½ years (approximately 10 years at the RELEASE date less 5-plus years on parole). Because Applicant’s time on parole would be greater than roughly 4½ years remaining of the sentence, Applicant would serve the “remaining portion ... without credit for ... the remaining portion of the sentence at the [WARRANT date].” Tex. Gov’t Code Ann. § 508.283(c) (Vernon 2004). This means Applicant would get street-time credit for the time on parole up to the WARRANT date.

Comments made at a public hearing by State Representative Gallego and by the former chairman of the Texas Board of Pardons and Paroles, Victor Rodriguez, help illustrate that the equation to determine the “remaining portion,” for purposes of 508.283(c), should be the sentence remaining as of the RELEASE date less time spent on parole. At the hearing, Rodriguez pointed out that if the remaining portion of the sentence is greater than the amount of time a person has been out of jail, then section 508.283(c) has “no effect.” Hearing on Tex. H.B. 1585 Before the House Comm. on Corrections, 77th Leg., R.S. (Mar. 6, 2001) (at 1:28:30) (comments of Victor Rodriguez). Such a comment reinforces the option of subtracting parole time from the RELEASE date because it illustrates that section 508.283 actually has the same effect as the former 508.283 (forbidding any street-time credit after parole revocation) unless an applicant’s remaining sentence is less than the amount of time spent on parole. The following example, similar to one given by Representative Gallego at the same hearing, further clarifies the impact of the amendment to section 508.283:

Assume a non-violent offender who is sentenced to a 10-year term in 1990, who serves 4 years in TDCJ, and who is released on parole in 1994. At this point, the remaining sentence is 6 years. After 5 years on parole, the offender has his parole revoked. Under the old law, the offender would be required to serve the entire 6-year sentence, making his total commitment 15 years (4 in prison, 5 out, and 6 more in prison). Under H.B. 1585, because the offender was non-violent, and because at the date of revocation the remaining portion of his sentence (6 years at release less 5 years on parole = 1 year) was less than the time served on parole (5 years), the offender would get credit for his time on parole. His total remaining sentence would be 1 year.

Id. at 1:18:15 (comments of Representative Gallego). This example gives a clear understanding that the legislature intended “remaining portion” to be the RELEASE date less time spent on parole.

Case Law

Few cases deal specifically with section 508.283(c). In Ross v. Cockrell, 2002 WL 31415979 (N.D.Tex. September 30, 2002), the petitioner filed for a writ of habeas corpus after his parole was revoked and he was refused street-time credit towards his remaining sentence. Id. at * 1. The petitioner, who was not a person under section 508.149(a), was released on parole for the remaining 11 years out of a 15-year sentence. After spending “766 days on parole,” the petitioner had his parole revoked. Id. First, the court noted that, like Applicant, because the petitioner was not a person under section 508.149(a), and because the parole was revoked after September 1, 2002, “section 508.283(c) [controlled] whether he [was] entitled to credit.” Id. In rendering its decision, the court reasoned that section 508.283(c) did not afford the petitioner street-time credit because the “[p]etitioner’s remaining sentence of 11 years [was] greater than the 766 days he spent on parole.” Id. Though the facts in Ross did not afford the petitioner street-time credit under any interpretation of “remaining portion,” the court apparently interpreted “remaining portion” to mean the portion remaining at the petitioner’s RELEASE date, without taking into account time spent on parole. It is true that the court first appears to calculate the “remaining portion” as of the RELEASE date less time spent on parole by stating that “[w]hen TDCJ began the process of revoking his parole, Petitioner had more than eleven [sie] years remaining on his 15-year sentence....” Id. (emphasis added). Using the date when the revocation process began would impliedly mean that the court figured the remaining portion by taking the RELEASE date and subtracting the time spent on parole up until the revocation process commenced. But the petitioner had a 15-year sentence, spent 3½ years in jail, then spent 2 years and 36 days on parole. If the court had indeed used the RELEASE date less time spent on parole, the petitioner would only have had a remaining sentence of 9 years and 5 months.⁹ The only way for the Petitioner to have had “more than eleven years remaining on his 15-year sentence” would be for the court to have calculated the “remaining portion” as of the RELEASE date, without regard to time spent out on parole. This Court is not bound by the Boss decision, and to the extent that decision conflicts with what we construe as an accurate interpretation of the statute, we decline to follow. The proper interpretation of “remaining portion” is the remaining portion of the sentence on the RELEASE date, less time spent on parole.

Conclusion

After a careful analysis, we have determined that, of the two possible interpretations of “remaining portion” in section 508.283(c), only one interpretation will render the statute effective and consistent with legislative intent. “Remaining portion”in section 508.283(c) refers to that part of the sentence remaining at the RELEASE date, less time spent on parole.

Relief is granted. The Texas Department of Criminal Justice time credit office is hereby ordered to award Applicant street-time credit equal to the time he spent out on parole for this cause.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice time credit office, so that Applicant’s street-time credit may be calculated in accordance with our holding.

KEASLER, J., concurred in the judgment. KELLER, P.J., filed a dissenting opinion, in which HERVEY, J., joined.

1 . We note that the record is unclear, making it difficult to determine exact dates of incidents and certain actions taken pertaining to Applicant’s record.

2 . Street-time credit refers to calendar time a person receives towards his sentence for days spent on parole or mandatory supervision.

3 . From the supporting affidavits in the record, it is unclear what date the TDCJ office considered to be the "mid-point,” as well as how the office came to the conclusion that Applicant had not met such mid-point.

4 . Persons described under Section 508.149(a) of the Texas Government Code include those guilty of certain violent offenses. Tex. Gov’t Code Ann. § 508.149(a) (Vernon 2002).

5 . This test is merely to simplify the language of the statute for easier comprehension. It is not to be used as the sole test for determining the effect of 508.283(c) as a whole.

6 . Note that the SUMMONS date is used for computing the time spent on parole, rather than the WARRANT date, because section 508.283(c) says "on the date of the issuance of a warrant or summons initiating the revocation process _” Tex. Gov’t Code Ann. § 508.283(c) (Vernon 2002) (emphasis added). The summons, requesting Applicant to appear for a pre-revocation hearing and thus starting the revocation process, was issued August 6, 2001. The warrant was not issued until September 4, 2001.

7 . Before the 2001 amendments, section 508.283(c) merely stated: "If a person’s parole ... [or] mandatory supervision ... 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 [RELEASE date] to the [REVOCATION date].” See Act of July 1, 1999, 76th Leg., R.S., 1999 Tex. Gen. Laws 62.

8 . HB 1585 was subsequently vetoed by the Governor on June 17, 2001. However, the exact same language is included in HB 1649, which became effective September 1, 2001. Thus, the policies and arguments made at the HB 1585 hearings can equally be applied to the identical portions of HB 1649.

9 . The remaining sentence would have been 11 years at the RELEASE date, less 2 years and 1 month on parole, for a remaining sentence of about 9 years and 5 months.