Opinion
NO. WR-77,231-10
10-04-2017
EX PARTE ERNESTO GARCIA ALVAREZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 27518D IN THE 18TH DISTRICT COURT FROM JOHNSON COUNTY
Per curiam. ORDER
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 twenty-five years' imprisonment. Applicant was later convicted of felony assault and was sentenced to a concurrent term of ten years' imprisonment.
Applicant argues that prison officials must release him to non-discretionary mandatory supervision (MS) on the 25-year murder sentence imposed in 1990. According to prison officials, Applicant's MS-release on the murder sentence is connected to when he discharges or is approved for parole or discretionary mandatory supervision (DMS) on his concurrent family-violence sentence that was imposed in 2011. The Parole Board's policy is that "[T]o be released to mandatory supervision, an offender must be eligible to be released on all offenses." See Parole Division Affidavit dated Apr. 13, 2016, and filed in Ex parte Spain, No. WR-85,337-01 (Tex. Crim. App. May 17, 2017). Applicant has not been approved for DMS-release on his family-violence conviction, so he will not be released to MS on the murder conviction.
We order that this application be filed and set for submission to examine the legality of the policy, as applied to Applicant, of not "releasing" a prisoner to mandatory supervision on one concurrent sentence until the prisoner is "eligible for release" on all concurrent sentences and whether this Court's decisions in Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), and Ex parte Williams, 257 S.W.3d 711 (Tex. Crim. App. 2008), are applicable. The parties are invited to brief the issues. The Office of General Counsel of TDCJ is also invited to file a brief.
The trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. TEX. CODE CRIM. PROC. art 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing either the order appointing counsel or a statement that Applicant is not indigent. All briefs shall be filed with this Court within 90 days of the date of this order. Filed: October 4, 2017
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