Opinion
No. WR-70,887-01
Filed: April 1, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, appeal from Dallas County.
JOHNSON, J., filed a statement concurring in the order of the Court.
CONCURRING STATEMENT
Applicant filed this application for writ of habeas corpus because he believes that the Texas Department of Criminal Justice (TDCJ) changed his mandatory-supervision release date from February 2, 2008, to February 2, 2011, without adequate explanation. The Court properly denies relief because applicant has a second conviction that controls applicant's eligibility for release and it is that conviction that caused the change in release date. While relief in this case is properly denied, this application once again demonstrates that TDCJ's practices create unnecessary work for itself and the judicial system. We explained the problem in Ex parte Hill, 208 S.W.3d 462, 465 (Tex.Crim.App. 2006). It would avoid confusion in the future, decrease the number of writ applications filed in the trial courts, and eliminate the need for affidavits from prison officials, if TDCJ clarified its inmate time sheets (or any other source traditionally consulted by inmates in determining their status) to show whether an inmate is absolutely ineligible for mandatory supervision under section 508.149(a), or is temporarily ineligible because he has been denied release based on section 508.149(b) findings. My dissent expanded the majority's point. Like many groups, the Board of Pardons and Paroles (BPP) appears to have developed an argot that is useful within the confines of intra-panel communication but is counter-productive when used outside of that environment. . . . There is a legitimate differentiation between mandatory supervision and discretionary mandatory supervision (a legislative oxymoron). The inexact use of the words "eligible" and "ineligible" seems to be producing much of the confusion. If BPP means that an inmate is ineligible for mandatory supervision, but eligible for discretionary mandatory supervision, then its communications with inmates should say so. "[O]ffense identified as not eligible for mandatory supervision release by statute" does not convey such a message. . . . Coupling "offense identified as not eligible for mandatory supervision by statute" with "offender was denied mandatory supervision by Board of Pardons and Paroles vote and converted to non-mandatory supervision status pursuant to HB 1433" exacerbates the already ineffective communication. If an inmate is not eligible for mandatory supervision, denial of it is superfluous, and the inmate's status cannot be "converted" to non-mandatory supervision status because he already has that status. . . . The flood of [writ applications] might conceivable be stanched by the use of plain, accurate descriptions of actions taken by BPP and removal of notations, such as "HB 1433" that are vague (HB 1433 from which session?), uninformative, and cryptic for persons such as inmates. For example, the notification to an inmate after a release hearing might be one of the following: "Inmate is ineligible for release on mandatory supervision because of a prior conviction for an offense listed in Texas Government Code § 508.149"; "Inmate is eligible for discretionary mandatory supervision, but has been denied release because the inmate's accrued good-conduct time does not accurately reflect the inmate's potential for rehabilitation and the inmate's release would endanger the public. Texas Government Code § 508.149(b)"; "Inmate has been denied release on discretionary mandatory supervision for the third time and is therefore ineligible for further consideration for such release." Hill, 208 S.W.3d 462, 466 (Tex.Crim.App. 2006)(Johnson, J., dissenting). Copies of that opinion were ordered sent to the Texas Department of Criminal Justice-correctional institutions division and to the Texas Board of Pardons and Paroles. Neither agency appears to have taken heed, so the problem continues. Inmates continue to misinterpret what the BPP did and file writ applications because of that easily avoidable misinterpretation. This Court must then continue to require trial courts to get affidavits from TDCJ to clarify the inmate's status, and TDCJ continues to be ordered to file those affidavits. All of this wastes scarce resources. I do not know which agency can resolve this problem mostly easily; perhaps resolution requires cooperation between the two. Whether one agency or both is required, eliminating this pattern of miscommunication would increase the efficiency of the system and prevent needless expenditure of personnel, time, and money. I greatly hope that both BPP and TDCJ will reread the opinion in Ex parte Hill, take heed of its not-so-subtle hint that they need to address the issue, and devise new procedures so that notices to inmates about the outcome of a hearing before BPP will clearly communicate what BPP's decision was.