NO. 73,064




Johnson J., delivered a concurring opinion on rehearing.



I join the majority opinion and write separately to express my concern over inequities that may occur merely as the result of the sequence of the filing of habeas corpus applications.

If the initial application does not "challenge the conviction," a subsequent application pertaining to the same conviction is not barred by Article 11.07, 4. See Evans, 964 S.W.2d 641 (Tex.Crim.App. 1998). On the other hand, should the initial application "challenge the conviction," a subsequent application pertaining to the same conviction is barred and will not be addressed on the merits unless it meets one of the conditions set forth in Article 11.07, 4(a)(1) or (2). This means that if an applicant alleges miscalculation of time credits in the first application and then challenges the conviction on the merits, the writ is not barred. On the other hand, if the challenge to the conviction on the merits is first, an application alleging miscalculation of time credits is barred, even though it itself is not a "challeng[e to] the same conviction." Although this result may not seem fair, it is consistent with the language of the statute.

When a statute is clear and unambiguous, we should apply the plain meaning of its words, unless the plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). That a result may not seem fair does not necessarily render it absurd. I do not believe that the result here is so unfair as to render it absurd.

Further, "[w]hether or not constitutionally sound legislation is fair, wise, just, harsh, complete, adequate, inconvenient, mischievous, expedient, necessary, desirable, or good policy must be decided by the Legislature and not by the courts." Pawson v. State, 865 S.W.2d 36, 48 n.6 (Tex.Crim.App. 1993) (Clinton, J., concurring). Should the state legislature believe that the application of Article 11.07, 4, leads to unacceptable inequities, it would be appropriate for the legislature to amend the statute. However, until the legislature makes such changes, we are bound by the statute as written and enacted.

I also note that the legislature has recently provided a method, outside of habeas corpus relief, for inmates to pursue claims of denial of time credits. Effective January 1, 2000, 501.0081 of the Government Code requires inmates alleging erroneous time credits to pursue their claims through a dispute-resolution process within the prison system.(1) Tex. Gov't Code 501.0081 (Vernon Supp. 1999). An exception exists for inmates who are near their discharge date. In such circumstances the inmate may raise the time-credit claim in an application under Article 11.07, if an application for a writ of habeas corpus is not otherwise barred.

The legislature has not explicitly addressed the use of Article 11.07 to raise time-credit claims. The enactment of 501.0081 provides an alternative avenue for inmates seeking time-credit relief, but it also perpetuates the time-credit inequity for applications filed before January 1, 2000, and for inmates near their discharge date, at a time when that inequity becomes most onerous. It is quite possible that, in enacting Article 11.07 and the new system for time-credit dispute resolution, the legislature was not cognizant of the inherent inequity as to the sequence of applications. If that is in fact the case, perhaps this case will assist the legislature in fashioning a remedy if it so desires.

With these comments, I join the opinion of the Court.

Johnson, J.

Date Delivered: March 1, 2000

En Banc


1. Sec. 501.0081. Dispute Resolution: Time-Served Credits.

(a) The department shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled.

(b) Except as otherwise provided by Subsection (c), an inmate may not in an application for a writ of habeas corpus under Article 11.07, Code of Criminal Procedure, raise as a claim a time-served credit error until:

(1) the inmate receives a written decision issued by the highest authority provided for in the resolution system; or

(2) if the inmate has not received a written decision described by Subsection (1), the 180th day after the date on which under the resolution system the inmate first alleges the time-served credit error.

(c) Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge. An inmate described by this subsection may raise a claim of time-served credit error by filing a complaint under the system described by Subsection (a) or, if an application for a writ of habeas corpus is not otherwise barred, by raising the claim in that application.

This section applies only to a claim made on or after January 1, 2000, that alleges a time-served credit error, as described above. A claim made before January 1, 2000, that alleges a time-served credit error, as described above, is covered by the law in effect when the claim is made.

Act of May 30, 1999, 76th Leg., R.S., ch. 1188, 1.38, sec. 501.0081, 1999 Tex. Gen. Laws 4122, 4133 (Tex. Gov't Code 501.0081) (Vernon Supp. 1999).