Jones, Roy Anthony

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 2010
• Docket: WR-33,842-05
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

NO. WR-33,842-05

---

EX PARTE ROY ANTHONY JONES, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F94-00145WV IN THE 291ST DISTRICT COURT

FROM DALLAS COUNTY

---

           Per curiam.

O R D E R

            Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to sixty years’ imprisonment. The Third Court of Appeals affirmed his conviction. Jones v. State, No. 03-94-00564-CR (Tex. App.–Austin 1996, pet. ref’d).

            Applicant contends that his parole review date was “set-off” for five years, see Tex. Gov’t Code § 508.141(g), and that this “set-off” resulted in an ex post facto violation. The trial court made findings of fact and concluded that Applicant’s claim was not cognizable and that he failed to establish an ex post facto violation “due to the fact that parole is a matter of grace, not a matter of right.” The trial court recommended that we deny relief. We agree with the trial court’s recommendation but not with its conclusions of law. Applicant’s claim is cognizable in an application for a writ of habeas corpus, and although parole in Texas is discretionary, see Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. App. 2000), the “presence of discretion does not displace the protections of the Ex Post Facto Clause.” Garner v. Jones, 529 U.S. 244, 253 (2000); see also Weaver v. Graham, 450 U.S. 24, 30 (1981)(“[A] law need not impair a ‘vested right’ to violate the ex post facto prohibition”). Applicant, however, does not plead sufficient facts to show that the change in parole law created “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” California Dep’t of Corrections v. Morales, 514 U.S. 499, 509 (1995). With these words, we deny relief.

Filed: January 27, 2010

Do not publish