IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 73,797

EX PARTE MARK LAURENCE BUSBY, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CRANE COUNTY


Price, J., delivered the opinion of the court in which Meyers, Holland, Johnson, Keasler, and Holcomb, J.J., joined. Meyers, J., filed a concurring note. Womack, J., filed a dissenting opinion in which Keller, P.J., and Hervey, J., joined.

O P I N I O N



In this application for a writ of habeas corpus, we must determine to what relief an applicant is entitled when a proper application for shock probation is made, but the trial court grants the motion after it loses jurisdiction to order shock probation. We hold that such an applicant is entitled to receive time credit for the period of erroneous release.

FACTS

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of theft, and punishment was assessed at ten years imprisonment. No appeal was taken from this conviction.

Applicant contends the trial court did not have the jurisdiction to release him to shock probation and, therefore, he is entitled to credit for the time he spent released prior to the revocation of that probation. Specifically, Applicant requests credit for the period from August 16, 1988, until August, of 1992. (1) Applicant was convicted on January 14, 1988. On March 18, 1988, 64 days later, Applicant filed a motion for shock probation. On August 16, 1988, more than 180 days after the execution of the sentence, the trial court signed the order granting Applicant's motion for shock probation. (2) Applicant's probation was subsequently revoked.

DISCUSSION

At the time Applicant committed the instant offense, Article 42.12, 3e(a), V.A.C.C.P., stated, in pertinent part:

For the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in the penitentiary . . . .



The trial court granted Applicant's request for shock probation after the expiration of 180 days from the execution of the sentence. The trial court was therefore without jurisdiction to grant Applicant's request for shock probation and Applicant's release was erroneous.

The seminal decision rendered by this Court regarding erroneous release to shock probation is Stasey v. State, 683 S.W.2d 705 (Tex. Crim. App. 1985). In Stasey, a defendant had filed a motion for shock probation 43 days after his sentence began, but specifically requested that no hearing be held until after the sixtieth day. See Stasey, 683 S.W.2d at 706. The trial court nevertheless granted shock probation early before the expiration of sixty days after sentencing. See id. We held that because the trial court granted the motion before jurisdiction attached, the defendant was entitled to credit for the time spent on shock probation prior to his becoming eligible, but he was not entitled to credit for time spent on shock probation after he was eligible since his motion requested release the day jurisdiction attached. See Stasey, 683 S.W.2d at 708.

The rationale for granting relief in Stasey was that a defendant should not be penalized if the relief he requests is proper, and only through the improper actions of the trial court does the order become void. See id. at 708. This rationale expressly rejected the previously employed "moving factor" analysis which would have denied the defendant any time credit for an erroneous release to shock probation. (3) See id.

However, while Stasey does give some guidance in this case, it is not dispositive. The actual holding in Stasey does not provide firm guidance in a case such as this when a defendant properly makes his request after jurisdiction has attached and the trial court grants probation after jurisdiction has expired. Unlike in Stasey, the trial court's jurisdiction will not attach at a future date. Therefore, we will look to the analogous situation in which an offender has been erroneously released to parole from the Institutional Division.

This Court has previously held that when an appellant has been released erroneously prior to full service of sentence or actual attainment of parole eligibility, and the release is through no fault of the applicant, he is entitled to time credit on his sentence for the length of time spent in release status. See Ex parte Morris, 626 S.W,2d 754 (Tex. Crim. App. 1982); Ex part Pizzolota, 610 S.W.2d 486 (Tex. Crim. App. 1980); Ex parte Esquivel, 531 S.W.2d 339 (Tex. Crim. App. 1976); cf. Ex parte Kuester, 21 S.W.3d 264, 271-72 (Tex. Crim. App. 2000) (finding defendant was not erroneously released and therefore not entitled to time credit for time on parole).

These holdings are also consistent with the broad language used in Stasey We stated that a defendant, "who is statutorily eligible for shock probation, requests that the trial court consider his motion within the statutorily defined time limits, and the trial court unilaterally, but erroneously, grants the probation, the defendant is entitled to credit . . . ." Stasey, 683 S.W.2d at 708. We hold that when a defendant makes a proper and timely request for shock probation, but the trial court's order is made after it has lost jurisdiction and is therefore void, the defendant will be entitled to time credit for the time spent in release status due to the erroneous order. See Stasey, 683 S.W.2d at 708; Morris, 626 S.W.2d at 755; Esquivel, 531 S.W.2d at 341.

Nothing in the record reflects that Applicant was responsible for his erroneous release. Applicant timely requested release to shock probation. His untimely release was not through any fault of his own, but because of the improper actions of the trial court after a request was properly made. When an applicant makes a proper and timely request for shock probation, but the trial court's order is untimely and therefore void, the Applicant should not be penalized for asserting his statutory rights.

Relief is granted. The officials at the Texas Department of Criminal Justice, Institutional Division are hereby ordered to amend Applicant's records in Cause Number 792 in the 109th Judicial District Court of Crane County to reflect additional time credit to cover the period from August 16, 1988, until November 9, 1991.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Institutional and Pardons and Paroles Divisions.



DELIVERED: March 7, 2001.

PUBLISH.



Meyers, J., concurs with note. I join the opinion of the Court, but would take the additional step of overruling Stasey v. State, 683 S.W.2d 705 (Tex. Crim. App. 1985). While I agree with the Court that Stasey contains broad language consistent with precedent, our ultimate holding there is inconsistent with our decisions in the parole context and with the rationale of Stasey itself. In my view, the result reached in Presiding Judge Onion's dissent in Stasey is more consistent with Stasey's rationale and the analogous parole settings. Presiding Judge Onion would have held applicant was "entitled to credit for the time he was at liberty on probation." Stasey, 683 S.W.2d at 711 (Onion, P.J., dissenting). I would go further than the Court today and overrule Stasey.





1. Applicant's probation was revoked on September 10, 1992, and he was granted 306 days time credit. Therefore, his actual claim would be for time credit for the period from August 16, 1988, until November 9, 1991.

2. An amended order was signed on August 30, 1988.

3. The premise was that, if a defendant was a "moving factor" in his erroneous release he would not be entitled to credit for time spent on release.