Jennings, Gary Don
WR-84,229-01
| Tex. | Dec 16, 2015Background
- Applicant Gary Don Jennings (pro se) challenges the Texas Board of Pardons and Paroles’ handling of Mandatory Supervision (MS) eligibility and denial, asserting he accrued 100% good-conduct time and completed programming but was denied statutorily‑mandated MS release.
- Jennings has two concurrent sentences: a 1989 30‑year UUMV sentence (governs release eligibility under earlier law) and a 2013 10‑year burglary sentence (post‑1996 offense). His earliest MS date(s) were in 2015 (May and August dates noted).
- A Discretionary Mandatory Supervision (DMS) notice dated 4/16/2015 (received ~22 days before a May 8, 2015 minimum expiration) is central: Jennings says it failed to provide the 30‑day advance notice required by statute/case law.
- Jennings raises three constitutional claims in his art. 11.07 habeas application: (1) due process (untimely notice and inadequate opportunity to be heard), (2) ex post facto (retroactive application of the Sept. 1, 1996 HB 1433 DMS rules), and (3) cruel and unusual punishment (abuse of administrative discretion causing disproportionate harm).
- Procedural dispute: the Dallas County district clerk initially forwarded Jennings’ 11.07 to the Court of Criminal Appeals as “unprocessed,” causing delay and, Jennings contends, obstructing his habeas rights; the state/DA argued procedural preclusion regarding claims tied to his 1989 conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of DMS notice / Due process | Jennings: DMS notice (4/16/2015) did not provide required 30‑day advance notice before his MS minimum date; deprived him of meaningful opportunity to present materials. | State/DA: DMS notice language allows review within 60 days prior and no prejudice shown; no live hearing required and inmate failed to demonstrate harm. | Court record shows state moved to dismiss on procedural grounds; applicant insists due process violated. (Rebuttal urges court to find a due‑process violation.) |
| Ex post facto / Retroactive application of HB 1433 | Jennings: Board retroactively applied 1996 DMS changes to extend or alter release eligibility tied to his 1989 sentence; that application increased punishment and violates Ex Post Facto Clause. | State/DA: Applicant is procedurally precluded from raising issues pertaining to the 1989 conviction in this 2013‑case habeas; controlling eligibility is governed by his longer/earlier sentence. | State contends procedural preclusion; Jennings argues the DMS notice references his 2013 conviction (post‑1996), so court has jurisdiction to consider ex post facto claim. |
| Cruel and unusual punishment / Abuse of discretion | Jennings: Arbitrary, capricious exercise of parole/ DMS discretion (including serial set‑offs, loss/restoration of street time, and retroactive rule application) constitutes Eighth Amendment violation given his nonviolent record and rehabilitation. | State/DA: Board denial does not amount to cruel and unusual punishment; no evidence supports that claim. | State denied the claim; applicant urges that the pattern of administrative acts rises to cruel and unusual punishment. |
| Procedural handling of 11.07 filing / Obstruction of justice | Jennings: District clerk forwarded his properly mailed 11.07 as "unprocessed" to Austin, delaying/obstructing relief; newly discovered evidence of clerical mishandling warrants relief. | State/DA: Contestant response focused on merits and procedural preclusion; treated filing irregularities as not excusing substantive dismissal. | Jennings requests court to treat the clerical forwarding as obstruction and to excuse procedural defaults; record shows re‑filing later was processed but application was dismissed on procedural grounds. |
Key Cases Cited
- Wolff v. McDonnell, 418 U.S. 539 (1974) (due process protections required when liberty interests, including good‑time credits, are at stake)
- Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004) (inmate entitled to sufficient advance notice to submit materials prior to parole/Mandatory Supervision review)
- Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995) (parole/MS claims raising constitutional and state‑law issues may be cognizable and the court should separate habeas and §1983 aspects)
- Lynce v. Mathis, 519 U.S. 433 (1997) (holding that retroactive changes to parole‑eligibility procedures can violate the Ex Post Facto Clause)
- Ex parte Ervin, 187 S.W.3d 386 (Tex. Crim. App. 2006) (Parole Board must apply correct statutory provisions and prisoners can seek habeas relief when board applies an incorrect statute)
- Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000) (mandatory supervision creates a protected liberty interest triggering due process protections)