IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 73,259


EX PARTE GREG KUESTER, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM ANDERSON COUNTY

Keller, J., delivered a dissenting opinion.

DISSENTING OPINION

The net effect of the Court's opinion is that an applicant will serve his two stacked sentences concurrently at all times after he is designated for parole on his first sentence. Under the Court's reading of Article 42.08(b) a prisoner will, usually, completely discharge his sentences in less time than the total of his two sentences. Because this appears to be contrary to the language and intent of the relevant statute, I dissent.

There are two possible ways of looking at the statute to give effect to the legislative mandatory stacking provision in a manner that the Court does not. First, the Court determines that "completed the sentence" in Article 42.08(b) means the same as "ceased to operate" in Article 42.08(a). Employing the usual rules of statutory construction, however, we should presume that the Legislature meant different things when it used different words in the two sections of the statute. The plain meaning of "completed the sentence" does not imply parole approval, especially considering the Legislature's alternative definition of the term "cease to operate" in Article 42.18 8(d)(2). The obvious meaning of a "completed" sentence is one that has been fully satisfied, i.e., one that would, but for a subsequent sentence, operate to discharge the inmate from prison and from accountability to the parole board. If we were to follow this reasoning, we would hold that a sentence is "complete" for purposes of Article 42.08(b) when it has been served out day-for-day. Under such a construction, no part of the stacked sentences would be served concurrently, thus achieving the obvious purpose of the mandatory stacking language. An inmate would not discharge his sentences until serving the total of both sentences, though he could be paroled on the second.

The Court acknowledges that this construction is not facially absurd, but contends that it is nevertheless incorrect because it renders Gov't. Code 508.150(a) meaningless and it permits the possibility of life without parole, in conflict with Gov't. Code 508.145. I find neither argument persuasive. The effect of 508.150(a) is limited by my proposed construction, but the statute is not rendered meaningless. And the conflict with 508.145 is created only by the Court's broad interpretation of the statute that authorizes parole.

A second manner of viewing the statute would be to conclude, as the Court does, that "complete" means the same as "cease to operate." The question that then remains is what happens when a prisoner's first sentence is "completed," he serves time and is paroled on his second sentence, and his parole is revoked. Under the Court's view, the sentences have been running concurrently since the first sentence was "completed" and so upon revocation of parole, they continue to run concurrently. (1) Again, this construction seems to be contrary to the mandatory stacking provision.

An alternate interpretation of the statute would be to hold that, upon revocation, the prisoner must serve out his first sentence until he again "completes" it, and then begin to serve his second sentence. That is, the sentences would run consecutively. As the statute requires.

The Court concedes that the only impediment to this construction of Article 42.08 is our "well-settled law" that a person may not be required to serve his sentence in installments. That proposition is well-settled, but for two reasons we should not follow it in this context. First, we should not use a rule we created, and that has never been expanded to reach this situation, in a manner that completely abrogates the Legislature's directive, as it does here. The issue of what the statute requires is not answered by saying that our caselaw causes a problem with this construction. The Legislature is entitled to order sentences to be consecutive, regardless of what we have said about analogous matters.

Second, the proposition that a prisoner may not be required to serve his sentence in installments derives from the case of White v. Pearlman, 42 F.2d 788 (10th Cir. 1930). In that case and in the Texas cases that followed, the principle was used to give prisoners credit for time during which they were erroneously released from prison through no fault of their own. The courts concluded that a person should receive credit for time spent not incarcerated when he:

did no more than any other intelligent human being would have done under like circumstances--that is, to go home, when the court who had sentenced him, the county attorney who had prosecuted him, and the sheriff who had incarcerated him told him he could do so -



Ex parte Griffin, 258 S.W.2d 324, 158 Tex.Crim. 570 (1953), quoting from Ex parte Eley, 9 Okla.Cr.R. 76, 130 P. 821, 823. That's not what happened here. It is neither necessary nor equitable to extend the principle to the circumstances of this case.

Either of the above alternatives more effectively carries out the mandatory stacking provision of Article 42.08(b) than does the method adopted by the Court. Given the Court's conclusion, it is unnecessary at this juncture for me to decide which one is correct. With respect, I dissent.

KELLER, J.

DELIVERED: June 21, 2000

PUBLISH

1. It seems clear that the Court's opinion would require all stacked sentences to be treated the same, regardless of whether the stacking was ordered under Article 42.08(a) or (b).