*1 say ably Legislature: having up never which the made its long Court has since worst, imagined you’re process closely stuck it. mind. The thus more with “mother, I”, game sembles a Perhaps important enough anything remotely ju- that could be called High Robstown School to be excluded risprudence. playoffs the stаte baseball that this grant extraordinary mandamus re- It always important for issues to be lief; it important is often enough to issue fully developed factually legally before protect private mandamus relief to parties’ a final resolution the ultimate arbiter. legitimate claims of privilege; mandamus But they here have been. The Court has m certainly relief is warranted when nec- an answer parties, and it irre- essary protect rights of hundreds sponsible not to deliver it. litigants; thousands of it was neces- “[cjourts In Perry we reiterated that are sary prevent distorting workers’ com- contrоversies, erected to settle mul- not to pensation litigation although only a few tiply impera- them.”112 We followed that hundreds or thousands of in- dollars were tive in Perry; here we do not.
volved; and mandamus relief rightly help assure a successful end to redistricting proceedings. But if all of this true, is, and I think it then I dо not see
any colorable reason denying relief in a
case of the extraordinary magnitude of this
one.
Consistent many prece- Court’s Ex Parte Mark Laurence dents, I mandamus relief in BUSBY, Applicant.
this case. 73,797. No. Texas, Appeals Court of Criminal likelihood, In all we have not seen the En Banc.
last of this case. Back it goes to the court, district from whence from the grant- March ing or denial of stay it will bounce on
appeal to the appeals court of and this
Court, and then appeal from the affir-
mance or reversal of the Commission’s de-
cision, up and again, down until private
parties, taxpayers, and the multiplied
their investments in obtaining simple
yes-or-no answer. Incipiant ludi! Mind- waste,
less of this the Court bids par-
ties return day another and another day,
raising issues, the same making the same
arguments, until finally they given are they answer ever wanted —can the mitigation
Commission reverse or not—on Rio, 239, 258, Perry Ward, v. Del (quoting Cleveland v. 116 Tex. 12, 2001) Sup.Ct. (1926)). Tex. J. (Sept. S.W.
but trial court the motion after grants to order shock loses an applicant tion. hold that such We peri- entitled to receive time credit od of erroneous release.
FACTS post-conviction application This is pursuant corpus writ of habeas filed 11.07, Applicant was Article V.A.C.C.P. theft, punishment convicted of was years imprisonment. at ten No assessed appeal was taken from this conviction. the trial court did Applicant contends him to release and, therefore, he is enti- time he tled to credit prior to the leased revocation Specifically, Applicant requests bation. 1988, 16, August credit for the from Applicant until was con- August, 1992.1 18, 14, January 1988. On March victed on later, 1988, Aрplicant a mo- days filed August tion On for shock days after the execu- sentence, signed tion the trial court of the granting Applicant’s motion se. Busby, pro Mark Laurence probation.2 Applicant’s probation Fostel, Kermit, DA, L. Michael Matthew subsequently revoked. Paul, Austin, for Atty., the State. State’s
DISCUSSION OPINION Applicant committed At the PRICE, J., offense, 42.12, 3e(a), of the delivered the instant Article MEYERS, HOLLAND, stated, V.A.C.C.P., part: court in which pertinent JOHNSON, KEASLER, HOLCOMB, section, purposes For JJ., joined. jurisdiction of a which a sen- in the Tex- requiring writ of tence confinement application for a habeas im- Department relief as of Corrections corpus, we must determine what (of felony) shall posed when a for conviction is entitled made, days for 180 from the date continue application signed August Sep- 2. revoked on An amended order Applicant’s 1. 10, 1992, tember and he days credit. his actual claim for time would be until November actually execution of the sentence granting be- The rationale for relief in Sta- gins. expiration days sey After the of 60 was that a defendant should not be prior expiration requests if the relief he of 180 er, only through the improper actions from the date the execution of the sen- of the trial court does the order become actually tence begins, judge *3 void. See id. 708. This rationale ex- imposed court that such sentence pressly rejected previously employed on his own motion or on written motion “moving analysis factor” which would have defendаnt, suspend of the further execu- denied the defendant time credit for tion imposed place sentence and probation.3 erroneous release to shock probation the defendant on under the See id. article, terms and conditions of this if in opinion judge However, the defеndant Stasey while give does some case,
would not benefit from
guidance
further incarcer-
dispositive.
it is not
ation in the
The actual
penitentiary....
holding
Stasey
does not
firm guidance
vide
in a case such as this
The trial
granted Applicant’s
court
when a defendant properly makes his rе-
request for
probation
shock
expi
after the
quest
jurisdiction has attached and
after
ration
days
of 180
from the execution of
the trial court grants probation
juris-
after
the sentence. The trial court was there
expired.
diction has
in Stasey,
Unlike
jurisdiction
fore without
Appli
trial
cоurt’s
will not attach at a
cant’s
probation
shock
Ap
and
future date.
we will look
plicant’s release was erroneous.
analogous situation in which an offender
has
erroneously
parole
been
released to
The seminal decision
rendered
from the Institutional Division.
regarding erroneous
release
This Court has previously held thai
probation
State,
shock
is Stasey v.
683
when an
has been released erro
S.W.2d 705 (Tex.Crim.App.1985). In Sta
neously prior
full
service of sentence or
sey,
defendant had filed a motion for
actual
parole
attainment of
eligibility, and
shock
after his sentence
through
release is
no fault of
appli
began, but specifically requested that no
cant, he is entitled to time credit on his
hearing be held until after
day.
the sixtieth
length
spent
of time
See Stasey,
torily probation, requests concurs with note. the trial court his motion consider Court, I join the limits, statutorily within the defined step take the of overrul- additional unilaterally, and the trial court but errone (Tex. State, ing Stasey v. ously, grants the defendant agree Crim.App.1985). While with the is entitled to credit....” Stasey language Court that contains broad S.W.2d at 708. We hold that when a de with precedent, consistent our ultimate timely fendant makes a re there is holding inconsistent with our deci- quest but the trial parole in the context with the sions court’s order is after it lost made has view, Stasey my rationale of itself. void, therefore the de Presiding Judge reached in result Onion’s fendant will to time be entitled *4 Stasey dissent consistent due release status to the Stasey’s parole rationale and the analogous Stasey, erroneous order. See 708; Morris, 755; Judge would settings. Presiding at at Onion S.W.2d Es quivel, applicant have held wаs “entitled to for he liberty proba- the time was at on Ap- in the Nothing record reflects that (Onion, tion.” 683 S.W.2d at responsible plicant was for his erroneous P.J., dissenting). go further than requested Applicant timely release. today Stasey. and overrule Court probation. untimely lease to shock His relеase not fault of his through
own, improper but because of the actions WOMACK, J., dissenting opinion, filed a after of the trial court a P.J., HERYEY, KELLER, and which erly made. When an makes a J., joined. proper timely request and for shock his against The wants credit tion, but is untimely the trial court’s order of time in which he sentence void, Applicant and therefore should prison by a of grant released from penalized not be for his asserting statutory juris- court no the trial had rights. give. diction to This issue first came be- Relief granted. The officials at the the Court in 1981. We that such fore held Justice, Department Texas of In- Criminal a сredit. defendant was not entitled to hereby stitutional Division are to ordered Applicant’s amend records in Cause Num- appellant The sentenced on 792 in 109th District ber Judicial Court 27, 1978, and he March went County of Crane to reflect additional time on the same Department Corrections August credit to cover the “the execution day. 9,1991. until November actually beg(an)” no later Copies ap- this be to day. appellant shall sent Thereafter Justice, Department the Texas of Criminal plied court probation.” for “shock Institutional and and Di- Pardons Paroles probation” “shock visions. or 133 after execution actually began. This the sentence
MEYERS, J.,
concurring
filed a
note.
do,
without
for V.A.C.C.P.
42.12,
Article
3e
WOMACK, J.,
continue[d]
Section
dissenting opinion,
filed a
KELLER, P.J.,
HERVEY,
of the trial court to
in which
J.,
probation”
only
days af-
joined.
“shock
re
probation”
execution of
actual-
“shock
which hе had
ter the
the sentence
only
...
is entitled
to credit for
ly
quested; he
begins.
actually
the time he
was incarcerated.1
he is enti-
claims that
to “flat time” credit for the time he
tled
fol-
a divided court declined to
probation.
was released on
He makes
following
decision for the
low оur 1981
analogy
the cases in which inmates
believe that
the foregoing
reason: “We
prison erroneously,
released from
were
asserting
penalize
rules
defendant for
fault
through no
of their
Those
own.
A
statutory right
prisoners were not released at their re-
penalized if
should not be
the relief
quest.
analogy
The closer
requests
proper
through
Massie,
Tex.Crim.
278 improper
of the trial court
actions
does
(1955).
applied
Massie
Today
void.”2
become
probation, but he was
to 5
sentenced
reason,
accepts
saying,
ap-
“When
years’
judgment
confinement. After the
plicant
timely request
makes
court,
the trial
was affirmed
but the trial court’s
placed
which
Massie on
void,
untimely
order is
and therefore
no authority
had
to do. Massie
as-
applicant should
*5
that he was
claimed
entitled to
statutory rights.”3
serting his
probation.
the time he was on
This
that
principle
рerson
The
a
should not
disagreed,
the void
saying that
is,
penalized
for
a
no
asserting
right
due,
part,
order was
at
in
to Mas-
least
doubt,
good
nothing
a
one. But it has
to
actions.
sie’s own
case,
applicant’s
do with
since the
this
applied
probation
Relator
for
when he
benefit,
right
assertion of a
led to a
not a
pleaded guilty. He will not now be
penalty.
say
heard to
on
by no conduct
his
part
escape
did he
during
confinement
is,
The
what
question
right
first
did
period
he
at large
was
under the
applicant
The Court was obvious-
assert?
order.
void
ly
denying
in
when it
wrong
1985
said that
at
appli
“рe-
278
858.
to
S.W.2d
This was
a time credit
the defendant would
of
Money
cation
the rule of Ex
for
parte
asserting
nalize a defendant
his statu-
hun,
19,
546,
tory
probation,”4
Tex.Crim.
no
right
to
since there is
(1955):
appellant’s attorney
par-
“When
to
statutory right
and with
requested
case,
his
today’s
release he became the
ticular
to
relevance
there
moving
right
factor and
take ad
statutory
cannot
no
to release on
now
shock
(of
of a
vantage
void
not
statutory right
conditional bation. There is
even a
release)
part
on
County
of a
hearing
request
proba-
to a
Accord,
Williаms,
Judge.”
tion.5
Today
Court avoids the mistake
by
164 Tex.Crim.
84 it
failing
specify any
301 S.W.2d
made in 1985
(1957).
The
if
right;
says only
deny
is not entitled to
that we
time
applicant
penalized
credit
time he
on the
credit
will
for
“be
State,
v.
781-82
1.
610 S.W.2d
Ante 3.
Adams
174.
(citations
(Tex.Cr.App.1981)
and footnotes
omitted);
State,
accord
v.
Tamez
4.
asserting contrary Ms The law and reason. statutory rights.”6 tence possible right right request not for the time get defendant probation. which the during execution of suspended.7 The is true for the same request- what was for penalty Now prisoner on pаrole.8 time was released probation? ing shock The and the was released on granted applicant claims that he should Surely this was sentence, on he serve less time because If penalty. applicant thought it was a it, got prisoner a vacation from than a who penаlty, he would not have asked it. no serve. What gotten has vacation will complain “penalty” He did not about this justifies that what reason By law result? any dur- when he was or at released deemed a could the denial that result be on ing the his release penalty? penalty If the another Court has September 1988 to mind, what is it? time, shows, During the record public he was convicted of intoxication and penalized if the would be while He driving intoxicated. smoked proba- him another district court marihuana, cocaine, used was fired from on the give tion and did not him credit job stealing one the same kind оf probation for the time period of erty stealing that he was convicted erroneously case, job was fired from another no on his sentence should have more effect refusing not suffer- work. He was any time on has on ing penalty. If a is sentenced to sentence. prison, being put yеars probated back in ten
He prison years, when his unauthorized of five the court revokes *6 penalty day year, was not last fifth was revoked. But that tion on the years. requesting probation; result of his defendant’s sentence is still ten violating result of his the conditions of prisoner idea that a should penalty probation. This cannot be the an er- got decreased because refers, appli- which the Court nor does the be prison vacation should roneous revocation, complain of cant accep- not the hearty laughter, met very nothing reason it good respect- gives today. tance the Court penalty than the exact that was assessed fully dissent. by the district court when pleaded guilty agreed sentence. “penalty” of which gotten
complains is he has not credit
against his sentence for time serving he was not the sentence.
when view, penalty. giving a my
This is no a sentence for against
defendant serving in which he sen- 6. Ante at 174. art to serve.” Crim.Proc. sentenced Tex Code 42.12, 23(b). part of the that the 7. “No Adams, (Tex.Cr. community 8.Ex supervision shall consid- App.1997). any part that he shall be ered as of the time