Opinion
7:03-CV-057-R
June 25, 2003
ORDER OF DISMISSAL
Petitioner, an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas, brings this action pursuant to 28 U.S.C. § 2254. Petitioner is serving a twenty-year sentence imposed pursuant to his Wichita County conviction for burglary of a habitation. Petition ¶¶ 1-4. Sheppard claims that he has been denied proper time credit on his sentence. His twenty-year sentence was impose on July 22, 1998, Id. He was released to parole on July 19, 1990 and the parole was revoked on August 16, 1993, Respondent's Answer, Exhibit A, p. 7. Sheppard was again released to parole on September 14, 1999 and parole was revoked on December 20, 2001. Id. at pp. 4-5. On September 11, 2002, Sheppard was reviewed for parole and denied release. Id. at p. 3. He remains eligible for parole and it appears that he will become eligible for release to mandatory supervision on April 5, 2006. Respondent's Answer, Exhibit B.
Sheppard argues that he has "short-way" discharged his sentence and should be released because, under the 70th Legislature, he is only required to serve one-fourth of his sentence before release to mandatory supervision. Attachment to Petition p. l. He claims that he has served ten-years of flat time and thereby qualifies for immediate release.
This ground for habeas relief is without merit. It appears that Petitioner has confused the rules on parole eligibility with those related to mandatory supervision. An inmate may not be released to mandatory supervision, or "short-way" discharge, until his time served plus good-time credit earned equals the maximum sentence. See Tex. Code Crim. Proc. art. 42.18 § 8(c) (West 1988). Sheppard makes no claim that he has accrued ten years of good time credit to add to his ten years of time served. Moreover, upon the two prior revocations of his parole, all of Sheppard's previously earned good time credit was revoked. Tex, Gov't Code Ann § 497.004 (West 1990) (currently Tex. Gov't Code Ann § 498.004(b) (West 2002)); Respondent's Answer, Exhibit B. Therefore, Sheppard is not entitled to mandatory supervised release at this time.
To the extent, if any, that Sheppard seeks immediate release on parole, he has failed to state a cognizable ground for relief. There is a crucial difference between the initial grant of parole and the revocation of parole. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct 2100, 2104 (1979). The revocation of parole involves the deprivation of a liberty interest which one has attained, whereas, the initial grant of parole is a conditional liberty which a prisoner desires. Id., 442 U.S. at 9, 99 S.Ct. at 2105. If a state's parole system does not create an expectancy of early release, there is no constitutionally protected right to release on parole. Id., 442 U.S. at 10-11, 99 S.Ct at 2105.
The Texas parole system does not create an expectancy of release. Gilbertson v. Texas Bd. of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993); Williams v. Briscoe, 641 F.2d 274, 276-77 (5th Cir.), cert. denied, 454 U.S. 854, 102 S.Ct. 299 (1981). The Texas statute provides that:
A parole panel may release an inmate on parole during the parole month established for the inmate if the panel determines that the inmate's release will not increase the likelihood of harm to the public.
Tex. Gov't Code Ann. § 508.141(d) (West 2003) ( emphasis added). Because the Texas Parole Board is vested with discretion in making initial parole determinations, no liberty interest is created and constitutional due process considerations do not attach. Gilbertson, 993 F.2d at 75.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DENIED.
A copy of this order shall be transmitted to Petitioner and to Counsel for Respondent
SO ORDERED.
JUDGMENT
This action came on for consideration by the Court, and the issues having been duly considered and a decision duly rendered,IT IS ORDERED, ADJUDGED AND DECREED that the petition for writ of habeas corpus is DENIED.
The Clerk of Court shall transmit a true copy of this judgment to Petitioner and to Counsel for Respondent