NO. 73,064




Mansfield, J., delivered the dissenting opinion.



Because I believe the application at issue in the present case does not challenge applicant's conviction, I must respectfully dissent to the opinion of the majority dismissing this application pursuant to Texas Code of Criminal Procedure article 11.07, section 4(a). Furthermore, I believe that our recent opinion in Ex parte Evans, 964 S.W.2d 643 (Tex.Crim.App. 1998), should not be overruled.

Article 11.07, section 4(a) expresses the Legislature's clear intent that, absent unusual circumstances,(1) a person may file only one application for habeas corpus relief which challenges the validity of a final conviction. In Ex parte Torres, we determined article 11.07, section 4(a) was intended to limit a convicted person to "one bite at the apple." Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997). Article 11.07, section 4(a), in my opinion, is the response by the Legislature to the formerly common practice of an inmate filing an initial writ application claiming, for example, ineffective assistance of counsel and, if said initial writ is denied, filing subsequent "piece meal" writs attacking his conviction on various other grounds. Nothing in the legislative history of article 11.07, section 4 indicates the Legislature intended its provisions to apply to an application alleging improperly-denied jail time credit as such an application is not, in any way, an attack on the validity of the conviction.

In Ex parte Evans, we recognized that not every application for habeas relief is a "challenge to the conviction" under article 11.07, section 4. Id., at 647. In Ex parte Evans, we held that applicant's initial application challenging his parole revocation did not challenge the validity of his conviction; accordingly, his second application, which did challenge the validity of his conviction, was not barred by article 11.07, section 4, and we proceeded to address its merits.

The situation in the present case is the reverse of that in Ex parte Evans. Here, the initial application clearly did challenge applicant's conviction; it is the subsequent application -- the one at issue -- that does not challenge applicant's conviction. I find it difficult to understand why a different result would ensue merely because of the order in which the applications were filed. Because Evans filed his application not challenging his conviction first, his second application challenging his conviction was not barred by article 11.07, section 4 from being addressed on its merits. In the present case, as applicant filed his application challenging his conviction first, his second application, which does not challenge his conviction, according to the majority, is barred by article 11.07, section 4 and thus must be addressed. Unless the majority expressly overrules Ex parte Evans (it appears to do so implicitly), it is difficult to reconcile the result here with that in Evans.

Furthermore, I must question, on stare decisis grounds, the wisdom of overruling Ex parte Evans, a holding less than two years old. The majority does not demonstrate, to my satisfaction, that Ex parte Evans has resulted in injustices or has been difficult for either the State or for applicants to follow.

Notwithstanding the propriety of the use of article 11.07 to address jail time credits in the first place,(2) doing so has become established practice and I cannot see any compelling reasons to "fix something that is not broken."

I respectfully dissent.



1. See art. 11.07, 4(a)(1), 4(a)(2), 4(a)(3).

2. It may not be correct for claims concerning jail time credits to be addressed by filing an application for writ of habeas corpus. This is because a claim for jail time credits does not seek relief from a felony conviction or otherwise challenge a felony conviction. They would be better handled (as they now are) through administrative procedures established by TDCJ-ID. Otherwise, such claims would be best pursued by applying for mandamus relief.