Opinion
NO. WR-88,078-01
06-06-2018
EX PARTE JENNIFER NACOLE FINLEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 31581-A IN THE 3rd DISTRICT COURT FROM ANDERSON COUNTY
Per curiam. OPINION
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 engaging in organized criminal activity and sentenced to ten years' imprisonment. She did not appeal her conviction.
Applicant contends that officials at the Texas Department of Criminal Justice (TDCJ) are improperly denying her consideration for release to mandatory supervision and improperly denying her parole review dates because they are misinterpreting the law as it relates to her conviction. Specifically, Applicant contends TDCJ is ignoring the savings clause contained in Senate Bill 549 (SB 549) which amended the provisions of TEX. PENAL CODE § 71.02(b), and TEX. GOV'T CODE §§ 508.145 and 508.149 effective September 1, 2013. Acts 2013, 83 Leg., ch. 1325 (S.B. 549), § 4(b), eff. Sept. 1, 2013. The savings clause in the bill stated that for "purposes of this section, an offense is committed before the effective date of this Act, if any element of the offense occurred before that date." The record reflects that TDCJ is treating Applicant's conviction as having an offense date of December 5, 2013, as listed on the judgment. However, one of the elements set out in the indictment to be proven by the State was:
On or about the 1 day of August, 2013, DPS conducted a controlled buy of between 4-200 grams of methamphetamine for Juan Pablo Nicacio. Smith and Finley facilitated the deal by locating Nicacio, taking the order for methamphetamine and discussing prices.
As a result of the savings clause, Applicant's offense should be treated as if the offense date occurred prior to the enactment of the changes set out in SB 549.
Relief is granted. TDCJ is ordered to consider Applicant's mandatory supervision and parole eligibility in Cause No. 31581 in the 3rd District Court of Anderson County under the law as it existed prior to the changes effective September 1, 2013.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division. Delivered: June 6, 2018
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