IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,248
Ex parte PATRICK GENE THOMPSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN THE 23RD JUDICIAL DISTRICT COURT
BRAZORIA COUNTY
Keller, P.J., filed a concurring opinion.
The question we confront today is whether a prior 1987 conviction for the offense of burglary of a habitation with the intent to commit theft," a first degree felony at that time, renders applicant ineligible for mandatory supervision on the new offense for which he is currently incarcerated. I agree with the Court that it does not, but I would analyze the issue a little differently.
A person's eligibility for mandatory supervision is determined by the statute in effect at the time the inmate's holding offense was committed. (1) Because applicant's holding offense was committed in 2002, then, the 2002 version of §508.149(a) applies. That statute 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 first degree felony under Section 30.02, Penal Code." (2)
We have already decided that for a prior conviction to render an inmate ineligible for mandatory supervision, the prior conviction must be on the current list of ineligible offenses. (3) The question here is: what is meant by "an offense on the current list?" More specifically, what does "a first degree felony under Section 30.02, Penal Code" refer to?
The answer to that question is found 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." (4) 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." (5) 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. (6) As a result, the post-September 1994 treatment of "sudden passion" applied to the juvenile sentencing proceeding. (7)
So, the Legislature has specifically prescribed how to treat one statute's reference to another statute. The referencing statute is essentially "updated" by any changes to the referenced statute. Deciding which version of a referenced statute applies is a simple matter of determining which version of the referencing statute applies.
Here, the 2002 version of the referencing statute (§508.149(a)) applies because applicant committed his holding offense in 2002. So the 2002 version of the referenced statute (Penal Code §30.02) is the applicable statute. In 2002, burglary of a habitation with intent to commit theft was not a first degree felony; rather, it was a second degree felony. Consequently, applicant's offense is not on the list of ineligible offenses, and he is entitled to relief.
Keller, Presiding Judge
Date filed: September 28, 2005
Publish
1. Ex parte Hall, 995 S.W.2d 151, 152 (Tex. Crim. App. 1999).
2. §508.149(a)(13).
3. Hall, 995 S.W.2d at 152.
4. Tex. Gov't Code §311.027.
5. In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998).
6. Id. at 185-186.
7. 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.