NO. 74,772




Hervey, J., filed a dissenting opinion in which Keasler, J., joined.


The Court has apparently decided that it will provide the extreme remedy of applicant's early release from prison (even though the Parole Board has determined that this would endanger the public) if the Board does not meet the Court's extra-statutory and arbitrary deadline for reviewing applicant for mandatory supervision release after "timely notice" to applicant. All of this ignores the ultimate due process question and has the very real potential of putting the security of the public at risk. I must, therefore, respectfully dissent to this particular exercise of the judicial power.

Applicant has filed a habeas corpus application. The record reflects that applicant previously filed another habeas corpus application in which he claimed that the Board had not provided him with adequate notice that it would review him for mandatory supervision release. This Court disposed of this writ on August 21, 2002, when it issued an opinion deciding that applicant was denied a meaningful opportunity to be heard when the Board reviewed him for mandatory supervision release in November 2001. The Board had notified applicant that it would review him in December 2001. Ex parte Retzlaff, slip op. at 1-2 (Tex.Cr.App. No. 74,412, delivered August 21, 2002) (unpublished) (by reviewing applicant early, the Board denied applicant a meaningful opportunity to be heard): see also Ex parte Shook, 59 S.W.3d 174 (Tex.Cr.App. 2001). This Court's August 21, 2002, opinion ordered the Board to "consider Applicant for mandatory release and provide him with timely notice that such consideration will occur." Id.

Applicant filed this current habeas corpus application in June 2003. Applicant contends in this proceeding that the Board considered him for mandatory supervision in January 2003 without providing him with adequate notice that the Board would do so. The record in this habeas corpus proceeding reflects that on March 7, 2002, the Board notified applicant in writing that it would again consider applicant for mandatory supervision release at some unspecified future date. This written notice further stated that if applicant wished to submit any additional information, he should do so "in writing as soon as possible to the TDCJ-Parole Division, P.O. Box 13401, Capitol, Station, Austin, TX 78711 OR to your Institutional Parole office." The record further reflects that on January 16, 2003, the Board denied applicant mandatory supervision release because, among other things, applicant's release would endanger the public and also because applicant committed a major disciplinary offense during the preceding six months. Applicant waited about six months (from January 2003 to June 2003) to file this application for habeas corpus.

Applicant contends that the Board did not provide him with adequate notice that it would review him for mandatory supervision release in January 2003. Applicant claims that the "ambiguous, vague" notice that applicant received on March 7, 2002, is the same as no notice at all and that the "[January 2003] hearing was just as defective as the old one [in November 2001] because the Board pulled the same stunt as before!!"


In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, the Supreme Court decided that Nebraska's "discretionary parole" statutory scheme (which is similar to Texas' mandatory supervision release statutory scheme) afforded all "the process that is due" by providing the inmate with an opportunity to be heard and informing the inmate of why he was denied "discretionary parole." See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 99 S.Ct. 2100, 2108 (1979).(1)

But, this Court decides that the Board violated applicant's federal constitutional due process rights because it should have provided applicant with better notice of the time it would review applicant for mandatory supervision release. But the due process issue is not necessarily whether applicant should have received better or perfect notice. The due process issue is whether the notice that applicant did receive provided applicant with an opportunity to be heard before the Board denied him mandatory supervision release. See Greenholtz, 99 S.Ct. at 2108.

The majority does not expressly hold that applicant was denied this opportunity to be heard. Instead, the Court speculates that the (March 7, 2002) notice that the applicant in this case received could deprive some future hypothetical applicant of an opportunity to be heard.(2) The Court further relies on applicant's allegation of "harm" that had he been given better notice, he "would have used all of the time right up to [January 16, 2003] to have letters of support submitted by his wife and children and friends." But, applicant has not shown that he had any (old or new) materials to submit. And, it is extremely doubtful that any unsubmitted materials that applicant may have had would have helped applicant given the Board's determination that applicant is dangerous to the public-a determination that this applicant does not dispute.(3)

The situation presented in this proceeding is not like the situation described in our August 21, 2002, opinion where the Board notified applicant that it would consider him for mandatory supervision release in December 2001 but then considered him in November 2001. See Retzlaff, slip op. at 1-2. There, we expressly decided that applicant was denied an opportunity to be heard when the Board reviewed him early. See id. In this case, the Board did not review applicant early. The Board reviewed applicant within the time frame that it stated that it would review applicant in the March 7, 2002, notice. This notice also shows that applicant had an opportunity to submit any additional information to the Board in support of his claim for mandatory supervision release. This notice even stated that applicant should submit this information "as soon as possible." On this record, applicant has not shown that he was denied an opportunity to be heard.(4)


The Court, contrary to the "plain" language of the applicable statutory scheme, further decides that "[w]ithout the two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, a parole panel must release an eligible inmate to mandatory supervision." This is an extreme, and potentially dangerous to the general public, remedy for any due process violation that may have occurred here. Instead of putting the public at risk with the early release from prison of dangerous inmates because of the Board's failure to comply with our orders, the Court should incarcerate the responsible Board officials under its contempt powers until they comply with the Court's orders. This, and not putting dangerous inmates back on the streets before they have served their sentences, is the usual method of enforcing our orders.

I respectfully dissent.


Hervey, J.

Filed: March 3, 2004


1. I generally agree with the Court's description of Texas' mandatory supervision release statutory scheme. In this case, the habeas record reflects that the Board made the necessary findings that makes applicant ineligible for mandatory supervision release. In addition, it would appear that Texas inmates have less of a "liberty" interest under the current statutory scheme than they did under the prior scheme since the prior scheme provided for "automatic" release and the current scheme does not. See Greenholtz, 99 S.Ct. at 2106-07 (describing how Nebraska's "discretionary parole" statutory scheme created a due process protected liberty interest in the expectation of parole).

2. For example, on page nine of its opinion, the Court states:

With this type of notice, an inmate could be reviewed the day after the notice was sent and therefore his materials could not be submitted in time, or he could be reviewed in ten to twelve months, in which case his materials may be entirely out-of-date. This notice is, from a constitutional due process standpoint, the same as no notice at all.

3. In deciding that "an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision," the Court's opinion reads too much into footnote six of Greenholtz. There, the Supreme Court noted that there was no claim that notifying an inmate of the month in which he would be reviewed for "discretionary parole" violated due process. See Greenholtz, 99 S.Ct. at 2107 n.6. The Supreme Court did not hold that due process required this. See id.

4. Notwithstanding this, it is worth mentioning the overall context in which cases like this come before the Court. The State of Texas may without violating the Constitution require inmates like applicant to serve their entire sentences day for day with no hope of parole or any other form of early release. Nevertheless, Texas citizens through their Legislature have provided for inmates like applicant to be reviewed for early release at least once a year. The statutory scheme even requires these inmates' release unless the Board makes the necessary findings that would prevent this. Though the applicable statutory scheme does not require it, the Board also provides these inmates with an opportunity to submit materials each time they are reviewed for early release. In this case applicant received everything that he was entitled to receive under state law when the Board denied him early release based on the findings required by the statutory scheme. Arguably, this is all "the process that is due" applicant. See Jimenez v. State, 32 S.W.3d 233, 244-45 (Tex.Cr.App. 2000) (McCormick, P.J., concurring) (due process requires that a defendant receive what state law provides).