Opinion
Civil Action No. 4:03-CV-943-Y.
July 2, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Kevin Murray Hudson under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on March 11, 2004;
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on April 1, 2004; and
4. The respondent's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on April 1, 2004.
The Court has also reviewed Hudson's reply to the respondent's objections, filed on April 19, 2004.
The Court, after de novo review, finds and determines that both the Respondent and the Petitioner's objections must be overruled, and that the petition for writ of habeas corpus should be denied for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
In his written objections to the magistrate judge's report and recommendation, the respondent challenges the magistrate judge's determination that Hudson is eligible for release to mandatory supervision, and thus has a protected interest in the loss of goodtime credits. Effective September 1, 1996, the Texas mandatory-supervision law was revised to provide for a discretionary mandatory-supervision scheme. Under the Texas statutory formula, "prisoners who are eligible under the statutory formula may be denied relief if a parole panel determines that the inmate's accrued good time credits do not accurately reflect his potential for rehabilitation and he would endanger the public if released." Although the Fifth Circuit has not yet decided whether this amended provision creates a liberty interest, the Texas Court of Criminal Appeals has determined that "the statute vests a liberty interest in the eligible inmate. . . ." Thus, the magistrate judge was correct in concluding that Hudson had a protected interest in the loss of accrued good-time credits, and that the process afforded to him in the revocation of such credits had to comply with minimal procedural due process. The respondent's objections to this portion of the magistrate judge's report are overruled.
See Malchi v. Thaler, 211 F.3d 953, 958 n. 6, (5th Cir. 2000) ("The new Texas Mandatory Supervision law adds a dimension of discretion to the Mandatory Supervision scheme . . ."), citing TEX. GOV'T CODE ANN. § 508.149(b) (Vernon Supp. 2004).
Ex parte Shook, 59 S.W.3d 174, 175 n. 1 (Tex.Crim.App. 2001), citing TEX. CODE CRIM. P. art 42.18, §§ 8(c), 8(c-1) (1996)) (recodified at TEX. GOV'T CODE § 508.149(b) (Vernon Supp. 2004); see generally Green v. Cockrell, No. 1:02-CV-138-C, 2003 WL 21801146 at *2 (N.D.Tex. July 25, 2003) (determining that Texas inmate subject to the amended mandatory supervision scheme was, on review of disciplinary proceeding resulting in lost good-time credit, entitled to minimal due process enunciated in Wolff v. McDonnell, 418 U.S. 538 (1974)).
See Malchi, 211 F.3d at 958 n. 6.
Ex parte Retzlaff, 135 S.W.3d 45, 2004 WL 1103077 (Tex.Crim.App. May 19, 2004); see also Ex parte Geiken, 28 S.W.3d 553, 558 (Tex.Crim.App. 2000) (rejecting the argument that because § 508.149(b) begins with words defining how release may be denied, it creates only a limited right of expectation: "This argument ignores the fact that the statute still contains mandatory language requiring release. That limitations may be placed on release if the Parole Board finds that certain conditions exist does not deprive the statute of its mandatory character.")
The Court notes that Hudson provided with his reply a document from the State of Texas Board of Pardons and Paroles, by which they informed him that he was "eligible for mandatory supervision; however, your release to Mandatory Supervision is subject to the discretion of the Board of Pardons and Paroles." (April 19, 2004, Reply, Exhibit 1.)
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Hudson's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.