*3 PRICE, J., in the result. concurred simply re- the statute Before WOMACK, J., concurring delivered any felony final conviction quired, “After JOHNSON, J., delivered opinion. case, be made returnable the writ must concurring opinion. at of Texas Appeals the Court of Criminal terms, Austin, By any those re- Texas.” MEYERS, J., dissenting delivered a quest for habeas relief MANSFIELD, J., opinion. delivered fell under case after final conviction dissenting opinion. Thus an for relief 11.07. WOMACK, J., concurring filed Pardons and an action of the Board of opinion. *4 Department or the of Criminal Paroles opinion rehearing on does The Court’s (at an Article arguably) was Justice least applica- allegations mention the petition. 11.07 applicant was convicted of bur- tion. The 1995, of Article procedures After allegation no glary in 1975. He makes 3-7, 11.07, an apply only to Sections subjects in judgment that that case relief applicant in which the seeks His claim is him unlawful confinement. to . non-capital felony judgment. See from a is Department of Criminal Justice that the id., kept 1 1. Section is Section When of time in periods him credit for denying mind, difficulty with perceived most of the during which he was con- 1988 and 1989 4 4 restricts disappears. Section Section jail parole-revocation war- to fined that is filed after subsequent application and by. the Board of Pardons rants issued the same application challenging “an Paroles. 1 and If we follow Section conviction.” whether this sees the issue as Court only applica- to apply those restrictions for writ of “a felony judg- from a tions that seek relief corpus” that term is used in habeas (or ment, every) subsequent every almost 11.07, Procedure article Code of Criminal “an initial will follow application whether it section 4. I would first ask the same conviction.” challenging for application as an should be considered 4 words, 1 and Section other Section corpus under Article writ of habeas 11.07 ini- harmony. An construed should be at all. be admitted tial should 4 to (under act that added Section The same post-conviction procedure 1: also added Section Article 11.071 1) felony from a relief Section “seeks will be an judgment,” and it procedures article establishes “challenging the conviction” of habeas that was for writ for amended was to applica guage of Article 11.07 was Judge Womack would dismiss 1. that, of Article after the enactment indicate ground applicant's claim is tion on the 11.071, apply only non- to Article 11.07 would Judge cognizable under Article 11.07. distinguished capital applications, as habeas Legislature that the nar Womack contends applications. capital habeas cognizable aon the class of claims rowed added 1 in post-conviction writ when it R.S., 7, 1995, Leg., 74th ch. procedures Act of June establishes the 1. 1995: "This article 5,§ Laws 2771. 1995 Tex. Gen. application for writ of habeas for an felony seeks relief from added). Although (emphasis imposing penalty other than 2. Id. at " correct, added). complete; disagree. Arti- (emphasis We Pri- it is not death Section for the language speaks procedures cle 11.07 also or to the revision of the before corpus in a case non-capital applica of habeas capital habeas both Proc. art. That conviction. See under that statute. were addressed tions TexGode Crim 11.07, § 2. lan the reason the us to believe that leads him for giving are not credit is no reason branch which the terms of Section There and 1989 suppose, today, period as the does of confinement pa- wanted to create a class of an executive warrant for pursuant applications under Section post-conviction procedures role violation. subject
1 that were not to the restrictions of Section including the restrictions supposition is not 4. Such applicable Section are not to this statute, of the called this without I would dismiss contrary to the intent manifestly and it is provi- to an action under other prejudice 7, 1995, “to of the Act of June which was or laws of sions of Constitution person bite at the limit a convicted to ‘one state. apple’” under Article 11.07. Torres, (Tex.Cr.App. J., JOHNSON, concurring delivered a
1997). ap The restrictions on opinion rehearing. on imposed in plications which were Section imperative make it that this Court careful opinion and write join ly consider whether an falls in- separately express my concern over Article 11.07. A that an within decision merely the re- equities occur application qualifies under Section works sequence filing sult of the of habeas consequences subsequent appli severe on corpus applications. *5 cations. “chal- application If initial does not the develop juris- need not further the We conviction,” subsequent appli- lenge the Evans, prudence, began parte in Ex conviction is pertaining cation same (Tex.Cr.App.1998), 964 643 about S.W.2d 11.07, § Ev- by not barred 4. See subsequent applications that initial follow ans, (Tex.Crim.App.1998). S.W.2d applications challenge that did not the con- hand, the other should the initial On viction but were Ar- cognizable still conviction,” a the subse- 11.07, ticle not Section There should be application pertaining to the same quent applications. such initial conviction is barred and will not be ad- I am aware that before 1995 habeas it one dressed on the merits unless meets corpus petitions were Arti- received under of the conditions set forth in Article challenge parole cle 11.07 to (2). 4(a)(1) if an or This means and other executive actions. It seems of time applicant alleges miscalculation plain longer to me that Article 11.07 no application and then credits the first applies to challenges such after the 1995 merits, on the challenges the conviction I amendments. am aware also of our deci- hand, not barred. On the other the joined, sion which I if to the conviction on the challenge that the of not restrictions Section first, application alleging an mis- merits is to a apply when the barred, calculation of time credits is even application initial was for relief from a “challeng[e it itself is not a though to] I revoking parole. agree order that Ev- Although conviction.” this result same trigger first ans’ it with the may fair, not seem is consistent 4; fact, restrictions of Section his first language of the statute. to a revocation did not belong under Article 11.07 at all. unambigu a statute is clear and When ous, ap- apply plain meaning is like Evans’ we should words, plication. plain meaning does not unless the leads Whiteside’s its State, v. Boykin relief from a to absurd results. judgment. seek complains neither fair from it. He That a result not seem does judgment nor seeks relief I do not necessarily in the render it absurd. agencies seeks relief executive a writ habe- here is so unfair as that the result believe barred. corpus is not otherwise to render it absurd. Further, explicitly has not ad- legislature or not constitution- “[w]hether fair, wise, use of Article 11.07 to raise just, dressed the ally legislation sound inconvenient, harsh, The enactment of time-credit claims. complete, adequate, mischievous, provides an alternative avenue necessary, desir- 501.0081 expedient, relief, but able, seeking for inmates time-credit policy by must be decided good inequity the time-credit by perpetuates the courts.” also State, January before 48 n. 6 for filed v. Pawson J., (Clinton, discharge near their and for inmates (Tex.Crim.App.1993) concur- date, inequity when that becomes legislature believe at time ring). Should the state that, 11.07, 4, quite possible It is most onerous. that the of Article system and the new enacting it would Article 11.07 unacceptable inequities, leads to resolution, dispute leg- to amend for time-credit appropriate legislature for the be However, the inherent cognizant islature was not legislature until the the statute. sequence applications. inequity are as to changes, makes such we bound case, perhaps this case If that is fact the written and enacted. statute as fashioning legislature will assist the I has re- legislature also note remedy if it so desires. method, provided a outside of habe- cently comments, join opinion With these relief, pursue for inmates to of the Court. time Effective claims of denial of credits. 1, 2000, § January 501.0081 Govern- MEYERS, J., dissenting this delivered alleging inmates erro- requires
ment Code
Rehearing.
on
opinion
pursue
time credits to
their claims
neous
My
makes.
dispute-resolution process
with-
a difference word
through
What
Procedure
reading
of Code of Criminal
prison system.1
Tex.
Gov’t Code
*6
(Vernon
majori-
§ 4
from the
Supp.1999). An ex- article 11.07
differs
§ 501.0081
word.
single
of a
ty’s reading
who are near
the use
ception exists for inmates
legisla-
on the
My interpretation
In
is based
discharge date.
such circum-
their
of words used elsewhere
may
the
raise the time-
ture’s choice
stances
inmate
with this Court’s
Article
and is consistent
credit claim in an
under
(b)
(c)Subsection
apply to an in-
does not
Dispute Resolution: Time-
1. Sec. 501.0081.
who, according
department’s
mate
Served Credits.
days
computations,
is within 180
(a)
department
develop
system
The
shall
date,
date of
presumptive
inmate's
complaint by
of a
that allows resolution
release, mandatory supervision, or date
on
alleges
who
that time credited
an inmate
by
discharge.
described
this
An inmate
the inmate's sentence is in error
on
of time-
may raise a claim
subsection
accurately reflect the amount of
does not
complaint
by filing a
error
served credit
the inmate is
time-served credit to which
by
system
Subsection
described
under the
entitled.
or,
(a)
application for a writ of habe-
if an
(b)
by
Except
provided
Subsec-
as otherwise
barred, by rais-
corpus is not otherwise
(c),
may
an inmate
not in an
ing
in that
the claim
corpus under
tion for a writ of habeas
claim made on
applies
to a
This section
11.07, Code of
Proce-
Criminal
2000,
1,
alleges a time-
January
that
or after
dure,
credit
raise as a claim time-served
error,
A
described above.
credit
served
error until:
1, 2000,
January
that al-
before
claim made
(1)
decision
inmate receives a written
the
error, as described
leges a
credit
time-served
authority
highest
provided
by the
issued
above,
effect when
by the law in
is covered
system; or
for in
resolution
the
(2)
the claim is made.
received a written
the inmate has not
if
th
R.S.,
Leg.,
ch.
(1),
May
Act
Subsection
decision described
th
Gen.
§
1999 Tex.
sec.
day
the date on which
the 180
after
501.0081)
§
system
Laws
the inmate
under the resolution
(Tex.
Code
Gov’t
(Vernon Supp.1999).
credit error.
alleges the time-served
first
application for writ of
subsequent
§ 4 in
If a
reading
conviction
corpus challenging
ma-
habeas
final disposition
§in
of an initial
jority’s interpretation has no basis
is filed after
same convic-
application challenging
and is at odds with Evans.
tion,
may
the merits
a court
not consider
provides
part:
in relevant
Section
based on the subse-
grant
of or
relief
subsequent application
If a
for writ of
...
application unless
quent
disposi-
final
habeas
is filed after
added). The
(Emphasis
legis-
on
application challenging
tion of an initial
provided that the initial
expressly
lature
conviction, a
may
the same
court
... con-
“challeng[e]
must
grant
consider the merits of or
relief
use
legislature
viction.” The
relied on its
un-
subsequent application
based on the
“same” to indicate that the two
of the word
...
less
applications must relate to the “same con-
an initial
Evans addressed whether
legislature did not
victions.” Because the
“challenge
cation was a
to the conviction”
provide
describing
for a term
how the
a subsequent application.1
so as to bar
relate to the
subsequent
must
The instant
raises
question
case
challenged by the initial
“same conviction”
whether a
must
subsequent
logical
it
to assume the
is most
(as
“challenge
also be
the conviction”
legislature
intended
Evans)
phrase
was defined in
in or-
application relate to the conviction
subsequent application
der for the
to be
application—
as the initial
same manner
barred
is,
convic-
“challenge”
it also must
majority says
subsequent appli-
§ 4 a
tion. The
reads into
conviction;
not “challenge”
need
word,
wholly inappropriate
strange
only “regard”
need
the conviction
explanation why
but offers no
this term
majori-
order to be barred under
4. The
selected over another term used else-
ty
reads the
4:
following language into
provision
where
connection with
If a
for writ of
majority’s
phrase
the same
to which the
corpus regarding
habeas
a conviction is
statutory
applies.
contrary
term
This is
disposition
filed after final
of an initial
good
construction and
sense.
application challenging the same convic-
addition,
that the
majority’s view
tion,
a court
not consider
merits
two
need not both
grant
relief based on the subse-
*7
§
the same convictions” under
4 is con-
quent application unless ...
Evans,
§ 4 in
trary
reading
to our
of
added).
(Emphasis on language
The ma-
supra.
stating
presented
of the issue
Our
jority modifies “a
in
conviction” addressed
§ 4
in Evans reflects that we read
to mean
the
with
term
initial
subsequent applica-
and
both
choosing
its
(“regarding”),
own
rather than
“challenged”
tions
the same convictions:
modify
the term used to
“the same convic-
whether,
must determine
[W]e
in the initial
tion” addressed
4,
§
“initial
Applicant’s
(“challenging”). It makes more sense that
(initial
as the
challenged] the same conviction”
applications
two
the
subse-
ap-
since the initial
conviction” in
instant
quent) relate
“same
Thus,
pertained only
Applicant’s
way.
following
plication
I read the
same
§
parole
hearing.
into
4:
revocation
Evans,
§of
parole
revocation from the ambit
1.
we noted that the term "convic-
mean
types
question
tion” had most often been construed to
these
of claims do not
because
guilt
punish-
and assessment of
prosecution
judgment.”
validity of the
Applying
interpretation in the
ment.
such
Evans,
647.
964 S.W.2d at
context of
4 "would exclude matters such
Evans,
that occurred subse-
(emphasis
period
at 646
add-
of confinement
ed).
conviction,
plain language
“challenge
The
was obvious to
is not a
quent to his
aspect
the Court in Evans. While this
and therefore is not
to the conviction”
in
was not the issue before
subject
§ 4. I would address the merits
reading
Evans and the Court’s
this re-
of the claim.
to a hold-
gard does not therefore amount
ap
affidavit reflects
parole
division
case,
ing
it nonetheless renders the
31, 1989,
January
plicant was arrested on
majority’s “plain language” reading of the
parole. He was released on
violating
provision today questionable.
3, 1989,
“pro
April
completing
after
interpre-
in Evans that our
We also said
County Facility” and
gram” at the “Bexar
phrase “challenging
tation of the
the con-
Applicant’s
the warrant was withdrawn.
viction”
18,
parole
August
later revoked on
parole
matters such as
would exclude
1989,
applicant pled guilty
after
to another
J,§
ambit
be-
revocations
affidavit
burglary.
parole
division
parole
cause a
does not call
credit for the
get
shows
question
validity
prosecu-
into
of the
31,
January
period he was confined from
judgment;
questions
tion or
rather
April
Applicant
is enti
completion of the
arising
issues
after the
parte
tled to relief on his sentence.
prosecution.
Price,
(Tex.Crim.App.
Id. at 647 This state- 1996). phrase only ment makes sense if the reasons, For these I dissent. “challenging applies the conviction” “initial “subsequent application” as well as holds, If, MANSFIELD, J., majority
application.” as the delivered the only the conviction” modifies “challenging opinion. dissenting far application,” “initial then Evans was I at is- Because believe interpreta- that our stating too broad present case does not sue “challenging tion of the conviction” “would respectfully I must applicant’s exclude matters such as revocations opinion dis- dissent to the majori- § 4.” from the ambit of Under application pursuant to Texas missing this parole revo- ty’s opinion, matters such as Procedure article Code of Criminal subject the ambit of cation are indeed 4(a). Furthermore, believe section they if are contained opinion in Ex our recent Only they are contained should (Tex.Crim.App.1998), S.W.2d 643 are matters such not be overruled. from the ambit parole revocation excluded 4(a) says majority. expresses section that, absent un- Legislature’s clear intent (ini- I would hold that circumstances,1 person file usual subsequent) tial or corpus re- one for habeas phrase as that is defined conviction” *8 a final validity of challenges lief which procedur- subject Evans are to and its Torres, we deter- parte In Ex conviction. chal- Any applications writ al bar. 4(a) 11.07, in- article section mined ques- matters that “do not call into lenge person to “one tended to limit a convicted prosecution validity tion the Torres, parte Ex apple.” bite at the pertain rather to “issues judgment” but Ar- prose- arising completion after the 11.07, 4(a), my opinion, is ticle section subject “subsequent cution” are not to the response by Legislature subsequent Applicant’s writ” bar of 4. inmate practice of an formerly for a common to time credits application, pertaining 11.07, 4(a)(2), 4(a)(3). 4(a)(1), §§ 1. See art. (it implicitly), it is appears to do so application claiming, an ans
filing initial writ example, of coun- the result here with ineffective assistance difficult to reconcile and, denied, filing initial is sel said that in Evans. “piece attacking meal” writs Furthermore, question, I on stare must grounds. his conviction on various other overruling grounds, decisis the wisdom Nothing history of article legislative Evans, a less than two parte holding Ex 11.07, section indicates the does not demon- years old. an provisions apply intended its to satisfaction, strate, that Ex my parte alleging improperly-denied jail time injustices or has Evans has resulted not, is credit such or for for either the State been difficult
way, validity an attack on the of the con- to follow. applicants viction. propriety of the Notwithstanding the Evans, parte recognized In Ex we jail time use of article 11.07 address every application not for habeas relief is a place,2 doing has credits the first so “challenge to the conviction” under article I cannot practice become established Id., 11.07, parte 4. at In section 647. Ex to “fix some- any compelling see reasons applicant’s ap we held not broken.” thing plication challenging his validity his convic challenge respectfully dissent. tion; accordingly, application, his second challenge validity which did of his con
viction, 11.07, by was not barred article proceeded
section and we address its
merits. present
The situation in the case Here, that in parte
reverse of Evans. initial application clearly challenge RESTAURANTS, MILLS GENERAL conviction; applicant’s it is the subsequent GMRI, Inc., INC. n/k/a at one issue—that does —the Appellant, applicant’s I find conviction. why it difficult to understand a different v. merely would result ensue because of Hooters, WINGS, INC. TEXAS d/b/a order which the were filed. XII, Inc., Wing’s, and Plano TWI Because Evans filed his Ltd., Appellees. first, his conviction his challenging second application challenging his conviction was No. 05-99-00354-CV. by
not barred 4 from article section Texas, Appeals being addressed on its merits. Dallas. case, present applica filed his first, conviction his challenging his Feb. 2000. which does not chal second lenge according to the ma his
jority, is barred article section must
and thus be addressed. Unless
majority expressly overrules Ex Ev (as are) concerning they would be better handled now It not be correct for claims *9 jail by filing procedures time credits to be addressed through estab- administrative corpus. Otherwise, for writ of habeas This is such claims lished TDCJ-ID. jail because a claim for time credits does not pursued by applying would be best for man- felony seek relief from a or other- conviction relief. damus They conviction. wise