Durham, William Earl
WR-30,830-14
| Tex. | Jul 17, 2015Background
- Applicant William Durham challenges TDCJ-ID’s removal of his discretionary mandatory supervision (MS) date for a 1992 burglary of a habitation (Penal Code §30.02).
- Durham contends the 1992 offense did not include subsection (d)(2) (weapons/explosives) or (d)(3) (injury) findings and therefore is not covered by the aggravated-offense list added by House Bill 1433 (Tex. Gov't Code §508.149).
- Durham says his convicting court previously indicated the offense was eligible for MS and argues TDCJ’s later reclassification is unlawful and should be resolved on the merits.
- Procedurally, Durham filed prior state habeas applications (including one for an out-of-time appeal); the district court entered 20.07 findings treating the current MS claim as an abusive/successive writ and declined relief.
- Durham argues his MS claim was unripe at the time of his earlier writ because he awaited TDCJ’s administrative time-credit response (a 180-day process) and he was constrained by AEDPA federal filing limits; he seeks an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument (Durham) | Defendant/Respondent Argument (trial court/TDCJ) | Held |
|---|---|---|---|
| Whether TDCJ lawfully removed Durham's MS date under Gov't Code §508.149 | Durham: 1992 burglary lacked (d)(2)/(d)(3) findings so HB1433 does not apply; MS removal unlawful | TDCJ/trial court: Agency acted consistent with statute/administrative authority; classification change permissible | Trial court treated claim as successive/unripe and denied relief; Durham objects and requests remand for evidentiary hearing |
| Whether current MS claim is barred as an abuse of the writ under Tex. Code Crim. Proc. art. 11.07 §4 | Durham: Prior habeas (out-of-time appeal) did not challenge conviction merits and thus should not bar this claim per McPherson; claim relates to MS eligibility, not conviction validity | Trial court: Considered prior applications and held applicant abused writ or failed to present claim earlier (citing Whiteside and §4) | Trial court found abuse/successiveness; Durham disputes this and seeks remand to develop record |
| Whether Durham exhausted administrative remedies before filing state habeas | Durham: He filed time-credit dispute with TDCJ and waited the required administrative period; filing earlier would have risked AEDPA default | Trial court/TDCJ: Argued claim should have been raised in earlier writ or was premature | Durham asserts exhaustion was incomplete when earlier writ was filed and that delay was necessary; court did not hold evidentiary hearing to resolve this dispute |
| Whether an evidentiary hearing is required to resolve factual disputes about MS eligibility | Durham: Factual issues (presence of weapons/injury, convicting-court findings, TDCJ procedures) require live evidence | Trial court: Resolved on 20.07 findings without remanding for live testimony | Durham requests remand for evidentiary hearing; district court denied — applicant preserves objection to CCA |
Key Cases Cited
- Ex Parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005) (addresses mandatory supervision eligibility after statutory change)
- Ex Parte Keller, 173 S.W.3d 492 (Tex. Crim. App. 2005) (same legal issue regarding retroactive application of MS exclusions)
- Ex Parte Mabry, 137 S.W.3d 58 (Tex. Crim. App. 2005) (interpreting Gov't Code §508.149 in post-enactment challenges)
- Ex Parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000) (holds an initial habeas seeking an out-of-time appeal is not necessarily a challenge to conviction for abuse-of-writ purposes)
- Ex Parte Whiteside, 12 S.W.3d 819 (Tex. Crim. App. 2000) (discusses successive-writ/abuse-of-writ principles)
- Ex Parte Hall, 995 S.W.2d 151 (Tex. Crim. App. 1999) (procedure for handling successive writs and related relief)