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


Keller, P.J., filed a dissenting opinion.

DISSENTING OPINION



In Kuester (1), our Court declined to interpret "completion of the sentence" to mean "discharge in full," saying that such an interpretation could, if the inmate died while on parole for the first sentence, lead to an absurdity. The "absurdity" was that such an inmate, "would never be punished at all by the second sentence, as he would never even begin serving it." (2) I agree that that is an absurdity, but that is what is happening in this case.

It also seems absurd to me that an inmate could ever shorten a sentence by incurring a second sentence - and a stacked one, at that. But that also is happening in this case. According to the Court's opinion in Kuester and its opinion today, because of applicant's violation of parole on stacked sentences, his first sentence is shortened by four and a half years, and he will never serve his second sentence at all.
For a time, the Texas Department of Criminal Justice and the Board of Pardons and Paroles calculated eligibility for parole on stacked sentences by adding the two terms and figuring parole eligibility based on the total. (3) In 1997, a policy change resulted in time calculations on each successive case being figured singularly and sequentially. (4) In Kuester, we considered the question of how parole eligibility for stacked sentences ought to be calculated, and decided the issue in a manner that I determined was not required by the statutory language and was directly contrary to the intent of the Legislature. The effect of our holding is that, after an inmate is designated for parole on his first sentence, his sentences run concurrently rather than consecutively. Because the earlier method of calculation was in effect from 1987 until 1997, this is the first of ten years worth of cases where stacking sentences will not only fail to achieve the purpose of stacking, but in some instances actually decrease the punishment of felons who violate their conditions of parole. I would avoid this anomaly by confining our "erroneous release" jurisprudence to its original realm. (5)

Despite the fact that stacked sentences will, under Kuester, necessarily run concurrently upon an inmate being designated for parole, I believe that the Court goes further than it needs in its holding today. In Kuester, we did not reach the question of time credits upon erroneous release because Kuester was not erroneously released - he was actually eligible for parole on both his sentences on the day he was released to parole. (6)

In this case, applicant was in fact eligible for parole on the first sentence when he was released. He then violated his parole and parole was revoked. The Legislature has declared that, upon revocation of parole, time credit is not to be awarded for time spent on parole. (7) The Court, however, awards applicant credit for the time he was released to parole on the first sentence because he should have been held in prison on the second sentence. It seems to me perverse to say that applicant was erroneously released on the first sentence - because he wasn't. In every respect relevant to the first sentence, his release was proper. The only factor that could render his release erroneous is the existence of the second sentence. If anything, he was erroneously released on the second sentence because he had not yet achieved parole eligibility for it.

Since applicant's release to parole on the first sentence was proper, and his parole was later revoked, he should forfeit the time he served on parole, in accordance with 508.283(b).

I respectfully dissent.

KELLER, Presiding Judge

Date filed: June 6, 2001

Publish

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

2. Id. at 264.

3. Id. at 265.

4. Id.

5. Id. at 274 (Keller, J. dissenting).

6. In fact, Kuester did not even seek time credit on both sentences. His claim was that he was erroneously released on his first sentence. Id.

7. "If a person's parole, mandatory supervision, or conditional pardon is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation." TEX. GOV'T CODE 508.283(b).