IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,133
Ex parte GARRIN WARDNER KELLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 93-091-K277A FROM THE 277TH DISTRICT COURT
WILLIAMSON COUNTY
Keller, P.J., filed a dissenting opinion.
In 2001, the Legislature added to Government Code §508.283 a provision that awards street time credit to certain offenders upon revocation of parole or mandatory supervision. (1) This time credit does not apply to "a person described by Section 508.149(a)." (2) The Court's opinion equates the phrase "a person described by Section 508.149(a)" with "a person to whom Section 508.149(a) applies" and it construes "previously convicted" to mean "convicted before the holding offense." I respectfully disagree with both of these propositions.
A. General statutory construction principles
In construing a statute, we look to the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended. (3) In conducting a plain meaning inquiry, we read words and phrases in context and construe them according to the rules of grammar and common usage. (4) Moreover, "[w]ords or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." (5)
B. "described by"
The question here is how to treat §508.283's reference to another statute, §508.149(a). The answer to that question can be found, in part, in Government Code §311.027, which states: "Unless expressly provided otherwise, a reference to any portion of a statute or rule applies to all reenactments, revisions, or amendments of the statute or rule." (6) In addressing this provision, our sister court, the Texas Supreme Court, explained: "When one statute references another statute, one must look to the referenced statute to understand the referencing statute . . . . [W]hen the referenced statute is amended or revised, the referencing statute incorporates the amendments or revisions." (7) In accordance with this reasoning, the Supreme Court held that a reference in the juvenile determinate sentencing statute (Family Code §53.045) to the murder statute (Penal Code §19.02) applied to the version of the murder statute in existence when the offense was committed (for which the juvenile was being sentenced), which was November 1994. (8) As a result, the post-September 1994 treatment of "sudden passion" applied to the juvenile sentencing proceeding. (9)
So, the Legislature has specifically prescribed how to treat a statute's reference to another statutory provision. Absent express direction to the contrary, a reference to a statute is to the current version of the referenced statute, as of the date the referencing statute applies in the case. This is true even when the referenced statute has been recently amended and the referencing statute has been unchanged for several years. The referencing statute is essentially "updated" by any changes to the referenced statute.
The 2001 amendment to §508.283 applies to "any revocation that occurs on or after September 1, 2001." (10) The date the "street time credit" provision applies to the defendant, then, is the date his mandatory supervision was revoked. So to the extent the meaning of §508.283 in the year 2004 (when applicant was revoked) turns upon its reference to §508.149(a), the meaning of the former provision will turn upon an examination of the then-current version of §508.149(a) - the version in effect in 2004.
The version of §508.149(a) in effect in 2004 provides in relevant part: "An inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of . . . a second or third degree felony under Section 21.11, Penal Code." (11) With his prior conviction in 1997 for indecency with a child, applicant clearly was, in 2004, "a person described by Section 508.149(a)."
It is true that §508.149(a) did not apply to applicant at the time of his revocation (and in fact does not apply to him even today). When applicant committed his burglary offense, the words "previously convicted of" were not included in Article 42.18, §8(c), (12) the predecessor to §508.149(a). Those words were not added until 1996, (13) and the change applied only to "a prisoner serving a sentence for an offense committed on or after the effective date" of the amendment. (14) So applicant's conviction for indecency with a child, even if considered a "previous conviction," could not render him ineligible for mandatory supervision because the burglary sentence he is serving was committed before the effective date of the change and, by the time he was revoked, he was no longer serving the indecency offense. (15)
But the question in the present case is not the applicability of §508.149(a). The question is whether applicant is "described by" that provision. It is true that §508.149(a) that begins with, "An inmate may not be released to mandatory supervision if," but that is the directive clause of the statutory provision. The rest of the provision is the descriptive clause, setting forth what exactly makes a person ineligible for mandatory supervision. If the "street time credit" provision (§508.283) had excluded from its reach "a person to whom Section 508.149(a) applies," then the rule for giving effect to the current version of the referenced statute would have required this Court to look to the various applicability and effective date provisions (which themselves are almost never amended), and that inquiry would have resulted in construing the "street time credit" provision to apply only to those who are in fact ineligible for mandatory supervision . But by excluding from the credit those who are "described by" §508.149(a), the Legislature dictated that we should look to the current list of ineligible offenses and determine whether applicant's convictions fall within that list.
C. "previously convicted of"
The Court indicates that the phrase "previously convicted of" in §508.149(a) refers to a conviction that is previous to the commission of the holding offense. But the statute does not say that. Rather, §508.149(a) refers to an inmate who "is serving a sentence for or has been previously convicted of" a listed offense. This phrase suggests that the Legislature intended to comprehensively cover all persons convicted of a listed offense, whether or not the conviction in question happens to be the holding offense.
Moreover, the phrase "serving a sentence for" indicates that the time-frame for assessing the existence of a listed offense is the time the inmate would otherwise be eligible for release. That is, the inmate will not be released, even if his time credits make him otherwise eligible, if he is serving a sentence for a listed offense. This interpretation is consistent with the "discretionary mandatory supervision" subsection of the same statute which clearly centers on the time period of possible release, not the time the original offense was committed:
An inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmate's release would endanger the public. (16)
The attentive reader will notice that the directive clause of subsection (b)(in italics) is identical to the directive clause found in subsection (a). Examining other portions of a statute to help ascertain the meaning of a particular subsection is an appropriate practice, (17) and here, the parallel construction strongly suggests that both subsections have the same temporal focus.
Of course, §508.283 is not concerned with release but with whether street time credit is given upon revocation. But the focus of §508.149 upon release is a focus upon the relief granted, so §508.283's incorporation of §508.149(a) should result in a parallel focus: ascertaining the existence of a listed offense at the time the time credit would be granted - the revocation of parole or mandatory supervision. Using the appropriate focus in applicant's case reveals that applicant is ineligible for the time credit because, at time of revocation, he had a previous conviction for indecency with a child, an offense on the then-current list found in §508.149(a).
Consequently, I would deny relief. I respectfully dissent.
Keller, Presiding Judge
Date filed: October 5, 2005
Publish
1. Tex. Gov't Code §508.283(c).
2. §508.283 (b), (c).
3. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
4. Lane v. State, 933 S.W.2d 504, 515 n. 12 (Tex. Crim. App. 1996); Tex. Gov't Code
§311.011(a).
5. Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim. App. 2004); Tex. Gov't Code
§311.011(b).
6. Tex. Gov't Code §311.027.
7. In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998).
8. Id. at 185-186.
9. Id. at 186. Amendments effective September 1994 eliminated the offense of voluntary
manslaughter and made "sudden passion" a punishment issue, on which the defendant carried the
burden of proof, in a murder prosecution. See id. at 186.
10. Acts 2001, 77th Leg., ch. 856, §11.
11. §508.149(a)(5).
12. Tex. Code Crim. Proc., Art. 42.18, §8(c)(1992).
13. Acts 1995, 74th Leg., ch. 263, §1, eff. Sept. 1, 1996.
14. Id. at §3(a).
15. At the time he committed the indecency offense, indecency with a child was not on the
list of ineligible offenses. See Acts 1997, 75th Leg., ch. 238, §2. Had he committed the offense
three months later, he would arguably have been rendered ineligible for mandatory supervision
while serving the indecency offense, see id. at §2(a)(second degree indecency with a child
included on list as of September 1993 amendments) and Tex. Pen. Code §21.11(a)(1) &
(d)(1992)(indecency of a child by contact is a second degree felony), but would then become
mandatory supervision eligible on the burglary offense once his service on the indecency offense
was finished.
16. §508.149(b)(emphasis added).
17. See Long v. State, 931 S.W.2d 285, 291 (Tex. Crim. App. 1996); State v. Stevenson,
958 S.W.2d 824, 828 (Tex. Crim. App. 1997).