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Ex parte Johnson

Court of Criminal Appeals of Texas

November 22, 2017



          Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Yeary, and Keel, JJ., joined. Keasler, J., filed a concurring opinion in which Hervey, J., joined. Alcala, J., filed a dissenting opinion. Walker, J., filed a dissenting opinion in which Richardson, J., joined. Newell, J., dissented.

          Keller, P.J.

         According to Parole Board policy, when an inmate has concurrent sentences, the Board does not consider him for release to parole until he becomes eligible under the sentence with the latest parole-eligibility date. Applicant has two ten-year sentences running consecutively and a forty-year sentence running concurrently with them. He contends that the Parole Board's policy will cause his second consecutive sentence to start running later than it should. We conclude that Applicant's claim is not cognizable on habeas corpus and that he has not shown the violation of a ministerial duty that would warrant relief on mandamus. Consequently, we deny relief.

         I. BACKGROUND

         Over a period of sixteen months during 2013 and 2014, Applicant was convicted of forgery, then possession of a controlled substance, and then delivery of a controlled substance. He was sentenced to ten years on the forgery case, then ten years on the possession case, stacked on the forgery sentence, and finally forty years on the delivery case, to run concurrently with the other sentences. The concurrent sentence with the latest parole-eligibility date is Applicant's forty-year sentence. He claims that the Parole Board ought to conduct a parole review of each sentence as it becomes eligible, as if it were the only sentence, which would result in parole review when his ten-year forgery sentence would, on its own, become parole-eligible. He argues that doing so would give him a chance to be paroled on the forgery sentence earlier, and so start the running of his possession sentence earlier, than if the first review is based on his eligibility on the forty-year sentence.

         II. ANALYSIS

         In general, habeas relief is available only for "jurisdictional defects and violations of constitutional and fundamental rights."[1] At least absent statutory direction to the contrary, [2] we have said that habeas relief is not available for mere statutory violations.[3] We have not clearly explained what "fundamental rights" might be cognizable on habeas that are neither jurisdictional nor constitutional, but we have suggested that such a right would have to qualify as an absolute right or prohibition under category one of Marin's[4] three-category error-preservation framework.[5]

         In Ex parte Sepeda, however, we held that habeas corpus "is the proper remedy" to compel the Parole Board to comply with a statute regarding parole-denial letters.[6] In the same breath, we also said that the statute did not create a liberty interest protected by due process.[7] Any statement in Sepeda about habeas being the proper remedy was, arguably, dicta because by the time we issued the opinion, the Board had revised its denial letter to conform to the statute and the inmate had already received the relief he sought.[8] But in any event, we conclude that Sepeda's statement that habeas is an appropriate vehicle for a claim based purely on statute is at odds with well-established habeas law, and we now disavow it. Although we do not overrule precedent lightly, we may do so when the prior decision "was poorly reasoned or has become unworkable."[9] The statement in Sepeda conflicts with every other case of fairly recent origin that has addressed whether statutory violations should be considered on postconviction habeas.[10] Sepeda is an anomaly in our habeas jurisprudence, and we reject it now. We turn then, to whether-without Sepeda-Applicant's claim is cognizable on postconviction habeas.

         We first determine that Applicant's claim does not allege a constitutional violation. A Texas inmate does not have a liberty interest in release on parole.[11] And the Supreme Court has made clear that procedural statutes do not by themselves create liberty interests-there must be a substantive liberty interest that the procedural statute is designed to protect for due process to be implicated.[12]Without a liberty interest in parole, procedural requirements concerning the timing of parole reviews do not implicate due process. And because no other constitutional right is even arguably at stake in this case, Applicant has failed to show a constitutional basis for habeas relief.

         Applicant has also not shown a jurisdictional defect or a violation of some other category one Marin right. Even if consideration for parole were deemed to be a procedural right, it hardly qualifies as an absolute entitlement that cannot be waived.[13]

         Any postconviction relief from a failure to conduct a timely parole review would have to be via mandamus. We have occasionally treated a habeas application as an application for mandamus relief when the circumstances warranted it.[14] But even assuming this Court has authority to issue a writ of mandamus against the Parole Board, mandamus would not lie here. To be entitled to mandamus relief, a party must have a clear right to the relief sought.[15] The relevant statute seems to specify only that, if an inmate has consecutive sentences, a parole review for a particular sentence be conducted "during each sentence."[16] The Parole Board's Rule 145.3(4) states, "An offender will be considered for parole when eligible" and when other criteria not at issue here are met. Applicant seems to construe the words "when eligible" in the rule to mean "when eligible on a particular offense." But another construction, and the one that seems most natural to us, is that it means "when eligible for parole" and that an offender is eligible for parole only when he has reached the parole eligibility date on the longest concurrent sentence. This also appears to be the construction employed by the Board of Pardons and Paroles, and, as an administrative construction not made in anticipation of litigation, it is entitled to deference.[17]

         We deny relief.


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

         I agree with the majority's judgment and I join its opinion. I write separately to suggest a reading of the relevant statute that may, going forward, satisfy both parties' concerns.

         Although the majority accurately conveys the facts of this case, I recite them in chronological order to aid the reader's understanding.

1. In May 2013, Johnson was sentenced to 10 years' confinement for forgery ("Sentence 1");
2. In August 2013, Johnson was sentenced to 10 years' confinement for possession of a controlled substance ("Sentence 2"), stacked upon Sentence 1; and
3.In September 2014, Johnson was sentenced to 40 years' confinement for delivery of a controlled substance ("Sentence 3"), concurrent to Sentences 1 and 2.

         Because it is stacked upon Sentence 1, Sentence 2 does not "begin"-that is, Johnson does not begin accruing credit on Sentence 2-until either (1) Sentence 1 is served day-for-day, or (2) the parole board votes to grant him parole on Sentence 1.[1] In practical terms, this means that Johnson cannot come any closer to attaining parole eligibility on Sentence 2 until he is "paroled" on Sentence 1. He is therefore understandably eager for an as-soon-as-possible parole vote on Sentence 1.

         The problem is that, per Board of Pardons and Paroles ("Board") policy, the Board will not hold a parole vote on any of his sentences until he is statutorily eligible for release on Sentence 3-his longest or "controlling" sentence.[2] This will not occur until December 2017, nearly four years after he became statutorily parole eligible on Sentence 1 (January 2014). While this delay would seem to have potentially deprived Johnson of four years of accrued time towards Sentence 2, the Board's stated reason for the delay is sensible enough:

The decision to delay the vote promotes efficiency; it means that the Board need not repeatedly review the same inmate for parole across a range of non-controlling, concurrent sentences. In other words, this policy . . . minimizes the burden on the parole system by reducing the need to prepare for and toconduct inefficient and repetitive votes where the benefit of such a vote is highly speculative.[3]

         In essence, the Board seeks to avoid what is sometimes called "paper parole"-a parole determination that would not result in an actual, physical release of the inmate from TDCJ custody. Johnson, meanwhile, retorts that if "his second sentence [had] commence[d]" in January 2014 (when he became statutorily eligible for release on Sentence 1), he would be eligible for actual, physical release in a matter of months, rather than years.[4] As it currently stands, even if he is given parole on Sentences 1 and 3 in December 2017, that decision will only mark the commencement of Sentence 2. He will not be physically released from TDCJ custody until he becomes statutorily eligible for, and is paroled on, Sentence 2.

         Both parties seem to think that the Board's impending parole vote on Sentences 1 and 3 can be only prospective in nature-that is, any vote to grant him parole would determine only the prospective commencement date of Sentence 2. I am not convinced that the Board's impending vote need be so limited.

         Government Code Section 508.150, the statute governing "Consecutive Felony Sentences" in parole matters, states that the Board "shall designate during each sentence the date . . . the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence."[5] This statute seems to allow-and may, by dint of the word "shall, " require-the Board to make retroactive parole determinations in the very limited context of consecutive sentences.

         If this interpretation of Section 508.150 is the correct one, both parties may have their druthers in this case. The Board may wait until December 2017 to conduct a single parole determination on all of Johnson's eligible sentences in one fell swoop. It may also, at that time, designate the date upon which Johnson "would have been eligible for release on parole if [he] had been sentenced to" but one sentence.[6] That is, the Board may retroactively consider Johnson for "parole" on Sentence 1 as though they were considering him in January 2014. If he is determined to have been an unsuitable candidate in January 2014, the Board may go on to determine the date that he "would have been" so suitable, and grant him "parole" as of that date-or it may indicate that he was not a suitable candidate at any time during that period.[7]

         Johnson, if he is retroactively granted parole in this manner, will receive all the credit towards Sentence 2 that he currently claims to have been unfairly kept from him. If, on the other hand, he is denied retroactive parole after appropriate review, he will not have been deprived of anything the law currently entitles him to.[8] After all, Johnson himself acknowledges that "parole is a privilege, rather than a right."[9] But he will at least have received review. In this respect, the unusual circumstances of his sentencing will not cause him to be treated any differently than other inmates, at least for parole purposes.

         Because Section 508.150 requires only that consecutive-sentence parole determinations be made "during each sentence, "[10] until Sentence 1 is served day-for-day, the Board cannot yet be said to have run afoul of the statute in this case. And as I understand it, the majority says only that Parole Board Rule 145.3(4) does not clearly impose upon the Board a legal duty to conduct a vote sooner than that.[11] I do not disagree that this is the most reasonable construction of the rule. I simply note that if, at its impending vote, the Board elects to make a retroactive parole determination in the manner that I have just described, all of Johnson's stated concerns will thereby be addressed to his satisfaction.

         With these thoughts, I join the majority.


          Alcala, J., filed a dissenting opinion.

         Can the parole board disregard applicable statutes without any judicial oversight? After today's majority opinion, the answer to this question is "Yes." Today's holding definitively tells the parole board that it may wholly disregard the Legislature's procedural requirements without any judicial oversight by this Court. I respectfully disagree with this holding. Although I agree that almost all of the parole board's decisions are wholly discretionary and not subject to judicial oversight, in rare cases such as this one involving mandatory statutory procedural requirements, I would grant either habeas or mandamus relief to Morris Landon Johnson II, applicant. I would hold that, when, as here, an inmate is serving two sentences concurrently but he also has a yet-to-commence third sentence that will be served consecutively to the shorter of his concurrent sentences, the parole board must consider him for parole on his shorter concurrent sentence at the point at which he becomes statutorily eligible for parole on that sentence. Here, by delaying a vote on applicant's parole for his first of two stacked sentences until he is eligible for parole on his much longer concurrent sentence, the parole board's policy deprives him of the opportunity to receive parole "on paper" for his first stacked sentence, which, if granted, would allow him to commence serving his second stacked sentence sooner. This policy by the parole board is arbitrary and presents a real possibility that applicant will be confined in prison longer than he otherwise would have been had he been timely considered for parole on the first stacked sentence. Under these circumstances, I agree with applicant's contention that he is entitled to relief, either through a post-conviction writ of habeas corpus or, alternatively, through the vehicle of mandamus. I, therefore, respectfully dissent. I explain my reasoning by reviewing the factual and procedural background, the applicable statutory requirements for parole eligibility, the merits of applicant's request for habeas relief, and alternatively, the merits of relief through mandamus.

         I. Background

         Here, applicant has three sentences for which he is confined in prison. Although he has become eligible for parole on one of those sentences, the parole board has not considered him for that parole, even though he has been eligible for that consideration for almost four years.

1.On May 16, 2013, applicant was sentenced to ten years in prison for forgery. He became statutorily eligible for parole on this sentence on January 5, 2014.
2. On August 13, 2013, applicant was sentenced to ten years in prison for possession of a controlled substance. The trial court ordered this sentence to run consecutively to the forgery sentence. Applicant has yet to commence serving this sentence. This sentence will commence either when applicant reaches calendar-time on the forgery sentence, or when he is granted parole on the forgery sentence, whichever comes first. See Tex. Gov't Code § 508.150(b).
3.On September 17, 2014, applicant was sentenced to forty years in prison for delivery of a controlled substance. The trial court ordered this sentence to run concurrently with the other two sentences. Applicant becomes statutorily eligible for parole on this sentence on December 6, 2017.

         Applicant alleges that, although he has been eligible to be considered for parole on his forgery offense for four years, the parole board has declined to consider him for parole during that time. The Texas Department of Criminal Justice (TDCJ) has filed a response explaining that, under circumstances in which an inmate is serving more than one concurrent sentence, it is the parole board's policy to delay consideration of an inmate's parole on an otherwise eligible offense until he also becomes eligible for parole on his "controlling" offense, which is the offense with the longest sentence.

         II. Statutes Require Each Sentence to Have Its Own Parole Eligibility Date

         I agree with applicant's contentions that the parole board's refusal to timely consider him for parole on his forgery sentence runs afoul of mandatory provisions in the Government Code that require timely parole consideration under these circumstances, and that the board's refusal to timely consider him for parole on the forgery conviction unfairly deprives him of the opportunity to begin serving his consecutive sentence for drug possession. See Tex. Gov't Code ยงยง 508.145(f), 508.150(a), (b). A review of the relevant provisions in ...

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