IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 73,884

 

EX PARTE EARNEST A. MILLARD, JR., Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM WARD COUNTY


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

O P I N I O N



Earnest Millard was serving two stacked sentences when the Texas Department of Criminal Justice (TDCJ) released him to parole. We must decide whether his release to parole on either sentence was erroneous, entitling Millard to credit for the time he was at large. We conclude that the release was erroneous as to both sentences.

Background

Millard was convicted of burglary of a habitation and sentenced to ten years' confinement. He was later convicted of criminal mischief and sentenced to four years to run consecutively with the ten-year burglary sentence. Millard was released on parole in the burglary case on April 5, 1990, because TDCJ officials mistakenly believed the sentences were concurrent. Parole was revoked on November 11, 1994. In the burglary case, Millard was credited with the time he was incarcerated under pre-revocation warrants. He was not otherwise credited on either the burglary or the criminal mischief sentence for the time between April 5, 1990, and November 11, 1994. TDCJ records currently show that Millard has not begun serving his four-year criminal mischief sentence.

Millard filed this post-conviction application for writ of habeas corpus alleging that his four-year sentence should have begun on April 5, 1990, in accord with Article 42.18,  8(d)(2)(B). (1) Millard also contends he is entitled to credit on both sentences for the time he was erroneously released. (2) The trial court found that Millard was erroneously released through no fault of his own and that Millard is entitled to credit on both sentences for the time he was erroneously released.



Analysis

A.

We have consistently found time credit claims to be cognizable on a writ of habeas corpus. (3) Nevertheless, the Legislature has recently decided that inmates seeking time credit relief in a writ application filed after January 1, 2000, must first exhaust administrative remedies by complying with 501.0081 of the Texas Government Code. (4) But since Millard filed this application in the trial court in 1999, 501.0081 does not apply. We must consider the merits of his claim.

B.

Once a person begins serving a sentence, that person continues serving the sentence, either in prison, on parole, or on mandatory supervision, until the sentence is discharged. (5) A sentence must be continuous and a prisoner or inmate cannot be required to serve his sentence in installments. (6) It follows that an inmate erroneously released from confinement through no fault of his own is entitled to credit on his sentence for the time he was at liberty. (7)

Of course, to prevail in habeas, an applicant must show harm. (8) In the case of an erroneous release from custody, the harm to the applicant is the deprivation of time credits which would have been accrued had the applicant remained in custody. We have implicitly applied this rationale in two recent cases. (9)

C.

At the time of Millard's burglary conviction, the law provided that he would be eligible for parole when his calendar time served plus good conduct time equaled one-fourth of his sentence or 15 years, whichever was less. (10) But the law also specified that the Parole Board could "not release on parole a prisoner sentenced to serve consecutive felony sentences earlier than the date on which the prisoner [became] eligible for release on parole from the last sentence imposed on the prisoner." (11) Therefore, an inmate who begins serving consecutive sentences after the first sentence is not actually eligible for release on parole until the inmate becomes eligible for release on all the sentences.

D.

In this case, Millard was convicted of burglary on December 7, 1989, and received credit back to August 7, 1989. When he was released to parole on April 5, 1990, he had served 242 calendar days on his sentence. The record does not reflect how much good time he had accumulated at this point, but Millard does not allege that he was lacking enough good time to be eligible for parole on the burglary sentence. We will assume, as Millard and the trial court do, that Millard had accumulated a sufficient amount of good time such that his total time credits equaled one-fourth of his burglary sentence at the time of his release on April 5, 1990.

But regardless of Millard's technical eligibility for parole on the burglary case, the fact remains that he had another sentence - the criminal mischief sentence - stacked onto the burglary sentence. So Millard's eligibility for parole was governed by former Art. 42.18, 8(d)(3). (12) As noted, that statute prevented Millard's release to parole until he became eligible for parole on the last sentence he was serving, the criminal mischief sentence.

Millard's four-year criminal mischief sentence began on April 5, 1990, which was effectively the date the parole panel designated as the date Millard would have been eligible for release on parole if he had been sentenced to serve that single sentence. (13) But Millard was not actually eligible for release on parole, since the four-year sentence began on that date and he was not eligible for release on parole on that second sentence. (14) Therefore, as to the burglary sentence, Millard was erroneously released because he should have been retained in prison not only to begin his second, cumulated sentence but also to continue serving the first. As to the criminal mischief sentence, Millard was erroneously released because he was not yet eligible for parole consideration since the judgment in that case only granted credit for 99 days of pretrial jail time. Consequently, Millard's release was erroneous as to both sentences.

E.

This conclusion is consistent with our recent decision in Kuester. In Kuester, we addressed the proper computation of time on stacked sentences. We concluded that an inmate serving stacked sentences begins serving his second sentence when his first sentence ceases to operate, which means the date it is served out in full day-for-day or the date when a parole panel approves the inmate for parole release. (15) We explained that, when the first sentence ceases to operate and the second sentence begins, the inmate continues to serve the first sentence while he serves the second sentence. (16) In passing, we stated that when an inmate begins serving the second sentence, he is "paroled," so to speak, on his first sentence. (17) Of course, the inmate does not literally parole his first sentence since he is not released from the custody of TDCJ. On the contrary, the statute makes clear that an inmate may not be released to parole on the first sentence until he is eligible for parole on the second sentence. (18) Nothing in Kuester altered this clear Legislative mandate.

Conclusion

Millard is entitled to credit on both sentences from April 5, 1990, to November 11, 1994, the period of time he was out of custody due to an erroneous release through no fault of his own. (19) To the extent Millard has not received all of that credit on the sentences, the Texas Department of Criminal Justice, Institutional Division, is ordered to grant Millard additional credit so that he receives credit from April 5, 1990, to November 11, 1994, in cause numbers 3144 and 89-09-3267-CRW from the 143rd Judicial District Court of Ward County.



DATE DELIVERED: June 6, 2001



PUBLISH



1. Former Tex. Code Crim. Proc. Art. 42.18,  8(d)(2)(B) (now Tex. Gov't Code 508.150(b)). Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure.

2. See Ex parte Esquivel, 531 S.W.2d 339 (Tex. Crim. App. 1976).

3. Ex parte Evans, 964 S.W.2d 643, 645 (Tex. Crim. App. 1998); Ex parte Ruthart, 980 S.W.2d 469, 470 (Tex. Crim. App. 1998); Ex parte Canada, 754 S.W.2d 660, 663 (Tex. Crim. App.1988). See also Ex parte Henson, 731 S.W.2d 97 (Tex. Crim. App. 1987); Ex parte Peel, 626 S.W.2d 767 (Tex. Crim. App. 1982); Ex parte Hurd, 613 S.W.2d 742 (Tex. Crim. App. 1981); Ex parte Pizzalota, 610 S.W.2d 486 (Tex. Crim. App. 1981); Ex parte Weaver, 537 S.W.2d 252 (Tex. Crim. App. 1976); Esquivel, 531 S.W.2d at 340-42.

4. Ex parte Stokes, 15 S.W.3d 532, 533 (Tex. Crim. App. 2000).

5. Ex parte Kuester, 21 S.W.3d 264, 272 (Tex. Crim. App. 2000).

6. Ibid.

7. Ex parte Yates, 659 S.W.2d 840, 843 (Tex. Crim. App. 1983); Ex parte Morris, 626 S.W.2d 754 (Tex. Crim. App. 1982); Hurd, 613 S.W.2d at 744; Ex parte Tarlton, 582 S.W.2d 155 (Tex. Crim. App. 1979); Ex parte Iglehart, 535 S.W.2d 185 (Tex. Crim. App. 1976); Esquivel, 531 S.W.2d at 341; Ex parte Downey, 471 S.W.2d 576 (Tex. Crim. App. 1971); Ex parte Bates, 538 S.W.2d 790 (Tex. Crim. App. 1976).

8. Ex parte Williams, No. 73,845 (Tex. Crim. App. April 11, 2001); Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995).

9. Compare Ex parte Busby, No. 73,797 (Tex. Crim. App. March 7, 2001) (denial of time credits due to erroneous release warrants relief; implicitly finding harm element of habeas corpus established), with Williams, supra (failure to show harm from erroneous release to probation where no claim made of denial of time credits).

10. Former Art. 42.18, 8(b)(1) (now Tex. Gov't Code 508.145(f)).

11. Former Art. 42.18,  8(d)(3) (now Tex. Gov't Code 508.150(c)(2)).

12. Now Tex. Gov't Code 508.150(c)(2).

13. Kuester, 21 S.W.3d at 271.

14. Former Art. 42.12 8(d)(3) (now Tex. Gov't Code 508.150(c)(2)).

15. Kuester, 21 S.W.3d at 266-71.

16. Id. at 272.

17. Id. at 272-73.

18. Former 42.18, 8(d)(3) (now Tex. Gov't Code 508.150(c)(2)).

19. Kuester, 21 S.W.3d at 271-73.