NO. 73,884





Johnson, J., joined by Meyers, J., concurring and dissenting.

C O N C U R R I N G  A N D  D I S S E N T I N G  O P I N I O N

It appears to me that, as the majority sets out, applicant was improperly released on the conviction for criminal mischief and that he is entitled to credit for the time spent at liberty. It also appears to me that his sentence in that conviction has now been discharged. However, as Judge Keller's dissent points out, he was properly released on parole for his conviction for burglary and is not entitled to credit on that charge for the time spent at liberty. Post, at ___ (slip op. at 3) (Keller, P.J., dissenting). Therefore, I concur in the judgment of the majority crediting applicant with time on his sentence for criminal mischief, but dissent to its judgment crediting applicant with time on his sentence for burglary.

In Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000), the applicant had consecutive sentences of ten years and four years. When TDCJ-ID received the information on the second sentence, it recalculated his parole eligibility by cumulating the sentences to reflect a sentence of fourteen years, as was the practice at the time. Id. at 265. Thereafter, in 1992, Kuester was released on parole. In 1997, after his 1993 revocation on the combined sentence, TDCJ-ID revised its procedures for calculating parole eligibility such that inmates did not accrue time credit for consecutive sentences until the prior sentence(s) had "ceased to operate." Id. Under the new procedures, Kuester was credited with beginning to serve the second sentence only after the Board of Pardons and Paroles ruled that the first sentence had "ceased to operate." Id. In his writ application, Kuester complained that TDCJ-ID was not giving him credit on the second sentence for pretrial jail time, prison time before his release to parole, or all of the time served since his revocation. He also sought credit for the time spent on parole, arguing that he had been released erroneously in 1992 because of the method used to calculate parole eligibility. Id. at 266.

After considering what meaning should be placed on "ceased to operate," we held that it means the point at which the Board of Pardons and Paroles would have released the inmate on parole but for a pending consecutive sentence. Id. at 270. We went on to determine that, even using the procedures which came into use five years after his original release, Kuester had sufficient credit for proper parole on both cases and had not been erroneously released. We therefore denied credit on both cases for the time spent on parole. (1) Id. at 271-2.

The facts here are similar in some respects to the facts in Kuester's request for credit for time spent on parole. Applicant had accrued sufficient time on the burglary sentence to be eligible for parole and was properly paroled on the burglary charge. While he should have been retained in prison to begin serving the second sentence, his parole and release as to the burglary charge were proper. He is, therefore, not entitled to credit on that charge for the time he spent on parole, and may be required to serve out whatever time remained on his sentence at the time of his release.

In contrast, the applicant here had accrued no time in prison as to the second sentence and did not have enough time credit from other sources to be eligible for parole at that time. Because release on the second charge was, in fact, erroneous, applicant is entitled to credit for the time spent at liberty. That time exceeds the length of the second sentence, and the second sentence is therefore discharged.

Johnson, J.

Date Delivered: June 6, 2001


1. Because of the disposition of the question of credit for time spent on parole, the other issues of time credit found in Kuester are not germane in this case.