Teague v. Quarterman

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT March 21, 2007
_____________________
No. 05-11368 Charles R. Fulbruge III
_____________________ Clerk

HUBERT EARL TEAGUE,

Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

----------------------
Appeal from the
United States District Court
for the Northern District of Texas
----------------------
Before WIENER and CLEMENT*, Circuit Judges, and MARTINEZ,
District Judge.**

WIENER, Circuit Judge:

At a December 2001 prison disciplinary hearing, Petitioner-

Appellant Hubert Earl Teague, an inmate in the Texas Department

of Criminal Justice, Correctional Institutions Division (“TDCJ-

CID”),1 was found guilty of having violated an anti-trafficking

and trading provision of the TDCJ-CID’s internal rules of

*
Judge Clement concurs in the judgment only.
**
District Judge for the Western District of Texas, sitting
by designation.
1
Nathaniel Quarterman is the Director of the TDCJ-CID and the
named Respondent-Appellee.
prisoner conduct. As part of his punishment, Teague forfeited

thirty days of previously earned good-time credit. Teague

subsequently filed a federal habeas corpus petition, alleging

that the TDCJ-CID failed to afford him the requisite procedural

due process. Citing Malchi v. Thaler2 and Richards v. Dretke,3

the district court denied Teague’s petition, concluding that the

loss of thirty days of previously earned good-time credit was “de

miminis,” and thus insufficient to command due process

protection. We conclude that the district court erred —— not

surprisingly, as we shall show —— in testing Teague’s loss for

whether it was de minimis and basing its ruling on a finding that

it was. After visiting our dicta in Malchi and Richards, we

conclude that no such “de minimis” floor is mandated by our

precedent, so that no amount of previously earned good-time

credit is so insignificant that it may be taken away by the

institution administratively without affording the inmate due

process. Stated differently, the TDCJ-CID must accord an inmate

due process before depriving him of any previously earned good-

time credits, however slight; there is no exception for an amount

that might otherwise be deemed de minimis. We, therefore, vacate

the district court’s judgment and remand for further proceedings

2
211 F.3d 953, 958 (5th Cir. 2000).
3
394 F.3d 291, 294 n.5 (5th Cir. 2004).

2
consistent with this opinion.

I. FACTS AND PROCEEDINGS

In 1990, Teague pleaded guilty to a theft offense in

violation of Texas state law and was sentenced to a prison term

of twenty-seven years. In 1994, Teague was released on parole.

While on parole, Teague committed seven additional state

offenses: six burglary offenses (committed on October 4, 1996;

December 9, 1996; December 24, 1996; January 20, 1997; January

25, 1997; and February 18, 1997) and one forgery offense

(committed on October 31, 1996). He pleaded guilty to five of

the burglary offenses and the forgery offense, but he pleaded not

guilty to the January 25, 1997 burglary offense. He was

subsequently found guilty on that charge and sentenced to a

forty-five year term of imprisonment. The incarceration term for

each of the six guilty-plea offenses was less than forty-five

years, and each was to run concurrently with the forty-five year

term. Additionally, his 1994 release on parole was revoked, and

his original 1990 sentence was re-imposed.

In December 2001, a prison disciplinary hearing was convened

against Teague. He was charged with committing a Code 15.0

violation —— Trafficking and Trading.4 It was alleged that

4
At the time of the offense, Code 15.0 was defined as: “The
unauthorized buying, selling, exchange or transfer of any commodity

3
another inmate, Melvin Jordan, had caused a $225.00 check to be

deposited into Teague’s inmate trust account, in violation of the

TDCJ-CID’s internal rules of conduct.

Prior to the disciplinary hearing, Teague was furnished

written notice of the charges against him via a computer

generated report. The offense description read, in part: “Teague

. . . did make an unauthorized exchange to (offender Jordan . .

.) by having offender (Jordan) place a sum of ($225.00) dollars

onto [sic] his trust fund account.” A second, hand-written

notice from the charging officer specified, in its offense

description section, that Teague “did make an unauthorized

commodity exchange with offender Jordan . . . by having offender

Jordan place a sum of $225.00 onto [sic] his trust fund account.”

The hand-written notice also stated, in the additional

information section, that “Offender Teague did have offender

Jordan place a sum of $225.00 onto [sic] his trust account . . .

.”

During the hearing, the charging officer’s report, the

transaction records of Teague’s inmate account, the $225.00

from any individual, other than making authorized purchases from
the commissary (evidence may include an excessive inventory of
marketable items).” In March 2002, Code 15.0 was amended to add a
second sentence, which reads: “This includes the unauthorized
transfer of money from one offender to another, whether the
transfer is direct or indirect.”

4
cashier check, and Jordan’s admission that he deposited the money

into Teague’s account were offered into evidence. Teague’s

defense, however, was not that the event never occurred, but that

he had no knowledge of or participation in Jordan’s deposit.5 No

evidence was offered as to why Jordan deposited the money into

Teague’s account or whether Teague had any knowledge of or

participation in Jordan’s actions.

At the beginning of the hearing, the disciplinary officer

made the following statement to ensure that Teague understood the

charge: “offender Teague . . . did make an unauthorized market

exchange . . . by having offender Jordan place a sum of $225.00

onto [sic] his trust fund accounts. Offender Teague, do you

understand the charges?” Teague responded, “Yes.”

The disciplinary hearing officer found Teague guilty and

assessed the following penalties: forfeiture of thirty days of

previously earned good-time credit; a reduction in good-time

earning rate; fifteen days solitary confinement; forty-five days

commissary and recreation restrictions; reduction in custodial

classification; and forfeiture of the $225.00.

5
In an evidentiary hearing before the district court, the
TDCJ-CID claimed that Jordan deposited the money in exchange for
Teague’s legal assistance. Teague denied this allegation. No
evidence or allegation of this quid pro quo was introduced at the
disciplinary hearing.

5
 After the hearing, Teague filed a step-one grievance with

the TDCJ-CID, appealing the disciplinary proceeding.6 Next,

Teague filed a step-two grievance.7 Finally, after fruitlessly

exhausting the internal grievance procedures, Teague filed a 28

U.S.C. § 2254 petition in the district court, seeking a writ of

habeas corpus.

In his habeas petition, Teague asserted that: (1) there was

insufficient evidence to support the finding of guilt; (2) the

prison officials failed to serve him timely with notice of the

alleged violation; (3) the disciplinary hearing officer was not

impartial; (4) the disciplinary hearing officer improperly denied

his request to call witnesses; (5) the disciplinary hearing

officer improperly denied his request to have the charging

officer present at the hearing; (6) the disciplinary hearing

officer stopped recording the hearing during Teague’s

presentation of the evidence; and (7) the TDCJ-CID improperly

removed the $225.00 from his inmate trust account. Teague

contended that, by these actions, he had been wrongfully deprived

of his right to procedural due process under the Fourteenth

6
The step-one grievance concerned the alleged impartiality of
the disciplinary hearing officer.
7
The step-two grievance concerned insufficiency of the
evidence, false disciplinary charges, denial of a full and fair
review, denial of witnesses, unfair disciplinary proceeding, and
other assertions.

6
Amendment.

After appointing counsel to represent Teague, the district

court conducted an evidentiary hearing on Teague’s petition. The

district court entered a written order in which it concluded that

there was no evidence to support the disciplinary hearing

officer’s guilty finding. The court denied the rest of Teague’s

claims. The district court’s decision on the insufficiency of

the evidence was premised on the TDCJ-CID’s failure to offer any

evidence that Teague “had” Jordan deposit the $225.00 into

Teague’s trust account. In light of this lack of evidence, the

district court concluded that the disciplinary hearing officer’s

decision was clearly contrary to established federal law —— which

requires “some evidence to support the findings made in the

disciplinary hearing”8 —— and granted Teague’s habeas petition.

In response, the TDCJ-CID filed a Rule 59(e) motion to alter

or amend the district court’s order. The TDCJ-CID cited our

decisions in Malchi9 and Richards10 and asserted that the

forfeiture of thirty days of previously earned good-time credit

was so “de minimis” that it was insufficient to warrant due

8
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 457
(1985).
9
211 F.3d at 958.
10
394 F.3d at 294 n.5.

7
process protection.

Understandably following the de minimis primrose path that

we had laid down in Malchi’s and Richards’ dicta, the district

court granted the TDCJ-CID’s motion to amend, agreeing that the

loss of thirty days good-time credit was de minimis and holding

it to be insufficient to entitle Teague to due process

protection. In reaching its decision, the district court

calculated that thirty days represented approximately .18 of one

percent of Teague’s forty-five year sentence. The court conceded

that it could not draw a bright line separating what does and

does not constitute a de minimis amount of good-time loss, but

was “relatively certain” that less than one-fourth of one percent

of Teague’s total sentence was de minimis in this case. At least

by implication, the district court approached the question of de

minimis on a relative or percentage basis, not on the basis of

the absolute number of days lost.

Teague timely filed a motion for a certificate of

appealability (“COA”). The district court granted the motion and

certified the following issue for appeal: Whether, in this
case, the forfeiture of 30 days of good-time credits pursuant to
a prison disciplinary action was a de minimis loss and, as such,
insufficient to trigger due process protections of the Fourteenth
Amendment.

II. LAW AND ANALYSIS

8
A. Standard of Review

In addressing requests for habeas relief, we review a

district court’s findings of fact for clear error and issues of

law de novo.11 Identification of a liberty interest that is

protected by the Fourteenth Amendment is a question of federal

constitutional law and is reviewed de novo.12 When due process

is required, the standard in prison disciplinary hearings

requires that there be “some evidence” to support the

disciplinary decision.13 Whether there is “some evidence” is an

issue of law that we review de novo.14 We may affirm a district

court’s decision on any basis established by the record.15

B. Protected Liberty Interest

Federal habeas relief cannot be granted unless the

petitioner alleges that he “‘has been deprived of some right

secured to him by the United States Constitution or the laws of

the United States.’”16 Here, Teague’s petition is premised on

11
Malchi, 211 F.3d at 956.
12
Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).
13
Hill, 472 U.S. at 457.
14
Richards, 394 F.3d at 293.
15
Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
16
Hillard v. Bd. of Pardons & Paroles, 759 F.2d 1190, 1192
(5th Cir. 1985).

9
the claim that the Texas mandatory supervision scheme provides

him with a protected liberty interest in his previously earned

good-time credits, so that Texas may not deprive him of such

credits without first affording him the requisite due process.

Obviously, the Constitution itself does not expressly

guarantee due process protection of good-time credits attained by

satisfactory behavior while in prison.17 A state statutory

scheme may, however, create a right to good-time credits; and

when one does so and recognizes that revocation is an authorized

sanction, an inmate’s interest in good-time credit is accorded

due process protection.18 Specifically, an inmate is entitled to

the minimum procedures appropriate under the circumstances and

required by the Due Process Clause to ensure that the state-

created right is not arbitrarily abrogated.19 Thus, when a state

inmate enjoys a constitutional expectancy to an early release

from prison based on the accumulation of good-time credits, he

has a protected liberty interest and is entitled to due process

before he may be deprived of such credits.20 Therefore, before

we address whether Teague’s thirty day loss is subject to an

17
Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
18
Madison, 104 F.3d at 768 (citing Wolff, 418 U.S. at 557).
19
Id. (citing Wolff, 418 U.S. at 557).
20
Hill, 472 U.S. at 453.

10
exception from the guarantee of due process because that loss was

de minimis, we must first determine whether Texas law affords

Teague a protected liberty interest.

In Texas, there are two general ways in which an inmate may

become eligible for early release.21 First, an inmate may become

eligible for parole; second, he may become eligible for mandatory

supervised release.22

Parole, which is not at issue here, is “the discretionary

and conditional release of an eligible inmate sentenced to the

institutional division so that the inmate may serve the remainder

of the inmate’s sentence under the supervision of the pardons and

paroles division.”23 We have held that there is no right or

constitutional expectancy of early release on parole in Texas,

because parole is within the total and unfettered discretion of

the State.24

In contrast, mandatory supervision in Texas is “the release

of an eligible inmate sentenced to the institutional division so

that the inmate may serve the remainder of the inmate’s sentence

21
Madison, 104 F.3d at 768.
22
Id.
23
Tex. Gov’t Code § 508.001(6).
24
Madison, 104 F.3d at 768; Creel v. Keene, 928 F.2d 707, 711-
12 (5th Cir. 1991).

11
not on parole but under the supervision of the pardons and

paroles division.”25 Prior to September 1, 1996, when a Texas

prisoner’s actual time served plus his accrued good-time credit

equaled the term of imprisonment to which he had been sentenced,

article 42.18, § 8(c) of the Texas Code of Criminal Procedure

specified that “‘a prisoner who is not on parole shall be

released to mandatory supervision.’”26 Under this former scheme,

the TDCJ-CID had no discretion in deciding when or if to release

an inmate on mandatory supervision; rather, an inmate had a

mandatory right to early release based solely on simple

arithmetic.

Effective September 1, 1996, Texas amended its mandatory-

supervision scheme to allow a parole panel a modicum of

discretion in determining whether an inmate otherwise eligible

for release on mandatory supervision should nevertheless remain

in custody.27 Under this post-September 1, 1996 scheme, section

508.147(a) of the Texas Government Code, like its predecessor

statute, mandates that “a parole panel shall order the release of

an inmate who is not on parole to mandatory supervision when the

25
Tex. Gov’t Code § 508.001(5).
26
Madison, 104 F.3d at 768 (quoting Tex. Code Crim. Proc. art.
42.18 § 8(c) (1996) (emphasis added)).
27
Ex parte Geiken, 28 S.W.3d 553, 555 (Tex. Crim. App. 2000)
(en banc).

12
actual calendar time served plus any accrued good conduct time

equals the term to which the inmate was sentenced.”28 A

difference resulted, however, from the addition of section

508.149, which states that “[a]n 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.”29 Thus, unlike its

purely predictive forerunner, Texas’s post-September 1, 1996

mandatory supervision scheme is mandatory in large part, but also

discretionary in small part.30

In Madison v. Parker, we were called on to decide whether

Texas’s pre-September 1, 1996 mandatory scheme of supervised

release created a constitutional expectancy of early release ——

an issue of first impression at the time.31 We lacked

significant information as to whether the petitioner was eligible

for mandatory supervised release, however, and were thus unable

to resolve the constitutional question until determinative facts

28
Tex. Gov’t Code § 508.147(a) (emphasis added).
29
Id. § 508.149(b).
30
See See Greenholtz v. Inmates of the Neb. Penal & Corr.
Complex, 442 U.S. 1, 13 (1976).
31
104 F.3d at 769.

13
could be established.32 Accordingly, we deferred decision on the

issue and remanded the case to the district court for further

proceedings.33

Three years later, in Malchi, we again faced the issue

whether Texas’s pre-September 1, 1996 mandatory supervised

release scheme created a constitutional expectancy of early

release.34 The petitioner in Malchi had been found guilty at a

prison disciplinary hearing of possessing a box of stolen

envelopes, as punishment for which his earning status for good-

time credit was reduced.35 This reduction was calculated to

delay the petitioner’s release by more than six months.36

In Malchi, we determined that the mandatory and predictive

nature of the pre-September 1, 1996 scheme vested inmates with a

constitutional expectancy of early release and a concomitant

protected liberty interest.37 Albeit purely in dicta, we went on

to temporize somewhat by offering that:

A Texas prisoner does not necessarily have a

32
Id.
33
Id.
34
211 F.3d at 957-58.
35
Id. at 955.
36
Id. at 958.
37
Id. at 957-58

14
 constitutional expectancy of release on a particular
date. For example, it is possible that a de minimis
delay of a few days in a prisoner’s mandatory
supervision release would not give rise to a
constitutionally cognizable claim. In the present
case, the evidence shows that the prison calculated
that the subject disciplinary action delayed [the
petitioner’s] release for more than six months as a
result of the change of status . . . . We hold that
such delay is more than de minimis.38

The parties have assumed, without argument, that the pre-

September 1, 1996 version applies here and, as such, that Teague

has a protected liberty interest under Malchi, leaving only the

de minimis question for our review. This assumption, however, is

flawed. First, as Teague was convicted of eight offenses —— one

of which occurred prior to September 1, 1996 and seven of which

occurred after September 1, 1996 —— it is unclear whether and to

what extent the former and present schemes apply.

Essentially, then, what we must determine is whether the

post-September 1, 1996 addendum to Texas’s mandatory supervision

scheme, with its narrowly limited modicum of discretion, works to

deprive all inmates of their constitutional expectancy of early

release. We hold that it does not. Therefore, we need not

determine which scheme applies here, as we conclude that Teague

has a protected liberty interest under either version.

Texas’s current mandatory supervision scheme is virtually

38
Id. at 958.

15
identical to those at issue in Greenholtz v. Inmates of the

Nebraska Penal & Correctional Complex39 and Board of Pardons v.

Allen40 and, as such, warrants the same result. In Greenholtz,

the issue before the Supreme Court was whether a Nebraska parole

statute created a protected liberty interest.41 Like the present

Texas mandatory scheme of supervised release at issue here, the

Nebraska statute was discretionary in part and predictive in

part, specifying that the state parole board “shall order” the

release of an eligible inmate, unless one of four specific

designated reasons was found to be present.42 Relying on the

structure and language of Nebraska’s parole statute, the Court

held that it created a presumption that parole release would be

granted and thus a constitutional expectancy of early release,

39
442 U.S. at 11-12.
40
482 U.S. 369 (1987).
41
442 U.S. at 11-12.
42
Id. at 11 (quoting Neb. Rev. Stat. § 83-1,114(1)) (emphasis
added). The four designated reasons were and still are: (1) there
is a substantial risk that the inmate will not conform to the
conditions of parole; (2) release will depreciate the seriousness
of the offense committed or promote disrespect for law; (3) release
will have a substantially adverse effect on institutional
discipline; and (4) continued correctional treatment, medical care,
or vocational or other treatment will substantially enhance the
inmate’s capacity to lead a law-abiding life when released at a
later date. Id.

16
entitling inmates to due process protection.43

Likewise, the Court in Allen determined that a Montana

parole statute created a constitutional expectancy of early

release.44 The Montana scheme provided that the state parole

board “shall release” an eligible inmate on parole when it finds

that there is a reasonable probability that the inmate may be

released without detriment to himself or the community and that

he is able and willing to fulfill the obligations of a law-

abiding citizen.45 Comparing the Montana statute to the Nebraska

statute in Greenholtz, the Court held that the Montana statute

created the same presumption of parole release and thus a

constitutional expectancy of early release, necessarily entitling

inmates to due process protection.46

Juxtaposing the structure and language of Texas’ post-

September 1, 1996 mandatory supervision scheme with those at

issue in Greenholtz and Allen leads us to the same conclusion.

Each of these statutes affords inmates the right to early

release, then ever so slightly diminishes that right with the

43
Id. at 12.
44
482 U.S. at 376.
45
Id. at 376-77 (quoting Mont. Code Ann. § 46-23-201 (1985))
(emphasis added).
46
Id. at 377-78.

17
potential for the exercise of official discretion in limited

instances.47 The Court has made clear that the presence of this

type of discretion will not deprive an inmate of an otherwise

protected liberty interest. Moreover, unlike the Court in

Greenholtz,48 we have the benefit of Texas caselaw on this issue,

which uniformly holds that the State’s current scheme does create

a protected liberty interest.49 All this convinces us that

Texas’ post-September 1, 1996 mandatory supervision scheme

creates a constitutional expectancy of early release and, as

such, a protected liberty interest in previously earned good-time

credits.

As Teague thus has a protected liberty interest in his

previously earned good-time credits under either the pre- or

post-September 1, 1996 mandatory supervision scheme, we need not

determine which scheme applies to him. He is entitled to due

process protection under both. Instead, we now address the

certified question of whether the state’s taking of thirty days

of previously earned good-time credit without affording Teague

47
See id. at 375-76 (distinguishing absolute discretion from
official discretion).
48
442 U.S. at 12 (citing Bishop v. Wood, 426 U.S. 341, 345
(1976)).
49
Geiken, 28 S.W.3d at 558-559; see also Ex parte Retzlaff,
135 S.W.3d 45, 49 (Tex. Crim. App. 2004).

18
the otherwise requisite due process is not error because such a

loss could be deemed de minimis.

C. “De Minimis” Loss

Despite acknowledging in Malchi the existence of a protected

liberty interest in good-time credits, we there mused in dicta

that a delay in an inmate’s mandatory supervised release might be

so insignificant (“de minimis”) that depriving him of his

recognized protected liberty interest need not comply with the

requirement of due process.50 Four years later, in Richards v.

Dretke, we touched on the de minimis concept, again in dicta.51

In footnote 5 of our Richards opinion, we speculated that:

A 30-day delay of a mandatory supervision release might
be de minimis and therefore not give rise to a due
process claim. The Malchi court held that while a few
days might be de minimis, six months was not. That
issue, however, is not before us as it has not been
raised . . . .52

Since Richards, numerous district courts have assumed that,

in the context of good-time deprivation, Malchi and Richards

constitute precedent for the de minimis exception to the due

process entitlement and have proceeded to address what quantum of

50
211 F.3d at 957-58.
51
394 F.3d at 294 n.5.
52
Id.

19
good-time credit loss is de minimis.53 Now is the time for us to

disabuse the courts of this circuit of the belief that

entitlement to due process is subject to a de minimis floor in

the context of disciplinary loss of good-time credit. In so

doing, we reject out of hand the concept of a de minimis loss for

good-time credit (and thus any exception to entitlement to due

process protection) that has seeped interstitially into our

lexicon, presumably from treating our dicta on the subject as

precedent. Acknowledging that Texas inmates have long had

protected liberty interests in any amount of previously-earned

good-time credit, we hold today that none may be taken away by an

53
See Henderson v. Quarterman, No. CIV.A. 06-245, 2006 WL
3448246, at **4-5 (S.D. Tex. Nov. 28, 2006); Powell v. Quarterman,
No. CIV.A. 06-224, 2006 WL 3371560, at **4-5 (S.D. Tex. Nov. 20,
2006); McNeel v. Quarterman, No. CIV.A. 06-0184, 2006 WL 2913151,
at *1 (N.D. Tex. Oct. 10, 2006); Roberts v. Quarterman, No. CIV.A.
03-0266, 2006 WL 2707406, at *4 (N.D. Tex. Sept. 18, 2006); Jones
v. Quarterman, No. CIV.A. H-05-2412, 2006 WL 2136214, at *3 (S.D.
Tex. July 27, 2006); Birdo v. Dretke, No. CIV.A. 04-0200, 2006 WL
1882096, at *4 (N.D. Tex. July 7, 2006); Ortuno v. Dretke, No.
CIV.A. 05-0094, 2006 WL 1409696, at *3 (N.D. Tex. May 23, 2006);
Martin v. Director, TDCJ-CID, No. CIV.A. 06-17, 2006 WL 981988, at
*4 (E.D. Tex. Apr. 11, 2006); Hay v. Dretke, No. CIV.A. 06-0391,
2006 WL 696647, at *3 (S.D. Tex. Mar. 16, 2006); Diez v. Director,
TDCJ-CID, No. CIV.A. 05-116, 2005 WL 2736444, at *2 n.1 (E.D. Tex.
Oct. 24, 2005); Gallman v. Dretke, No. CIV.A. 03-0399, 2005 WL
2493273, at *2 (N.D. Tex. Oct. 7, 2005); Carroll v. Dretke, No.
CIV.A. 05-216, 2005 WL 2467698, at *4 (S.D. Tex. Oct. 6, 2005);
Cartwright v. Dretke, No. CIV.A. 04-0293, 2005 WL 2318703, at *2
(N.D. Tex. Sept. 20, 2005); Teague v. Dretke, 384 F.Supp.2d 999,
1000-03 (N.D. Tex. 2005); Foster v. Director, TDCJ-CID, No. CIV.A.
05-15, 2005 WL 994593, at *2 (E.D. Tex. Apr. 12, 2005).

20
administrative tribunal without affording the inmate due process,

regardless of the absolute number of days forfeited or the

percentage of the sentence (or the remaining balance thereof)

represented by the number of days lost.

As we have implied, the de minimis concept is a creature of

spurious conception. In Malchi, we neither cited to nor relied

on any authority for the existence of the de minimis principle.54

In Richards, we relied solely on Malchi for the existence of the

de minimis exception, but merely hypothesized whether thirty days

was de minimis.55 We offered no jurisprudential or analytical

buttress for our “un-adoption” of the de minimis concept. It

appears instead that the concept was simply spawned

parthenogenetically and slipped into our storehouse of obiter

dicta. It is wholly unclear where the concept originated or why,

but it is time to cast this troublemaker from our jurisprudence

in the context of the issues before us. Today we exorcize the

exception for de minimis deprivation of the liberty interest and

hold that, when a state has created such a liberty interest, no

amount of good-time credit, however slight, may be stripped from

an inmate without affording him the protection of due process.

In Sandin v. Conner, the Supreme Court held that state

54
211 F.3d at 957-58.
55
394 F.3d at 294 n.5.

21
created liberty interests are generally limited to freedoms from

the restraints that impose “atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison

life.”56 In particular, the Court concluded that an inmate is

not entitled to due process protection before the imposition of

thirty days solitary confinement, because this punishment was not

an atypical or significant hardship.57

In justifying its decision, the Court noted, “[n]or does

[the petitioner’s] situation present a case where the State’s

action will inevitably affect the duration of his sentence.”58

In contrast, Teague’s situation, and that of any other Texas

inmate who is deprived of previously earned good-time credits, is

one in which the State’s action inevitably will affect the

duration of his sentence.

Under Texas law, once an inmate’s good-time credits are

forfeited, they can never be restored.59 Thus, once Teague’s

thirty days of good-time credit are taken away without due

process protection, his sentence inevitably will be thirty days

56
515 U.S. 472, 484 (1995).
57
Id. at 487.
58
Id. (emphasis added).
59
Tex. Gov’t Code § 498.004(a) (“The department may not
restore good conduct time forfeited under this subsection.”)

22
longer, as proscribed by the Court in Sandin.

Neither is the possibility that Teague may gain or lose

additional good-time credits in the future of any relevance.

Whatever additional good-time credit Teague may eventually gain

or lose will not affect his previously forfeited time. For

instance, if Teague should subsequently forfeit an additional

thirty days of previously earned good-time credit, these

additional thirty days would be cumulated with the thirty days

that he previously lost, making Teague’s total loss sixty days.

It would be a consecutive loss, not a concurrent one.

Conversely, awards of new good-time credit would be subtracted

from the previously lost thirty days. Neither future awards nor

future forfeitures have relevance to a present forfeiture.

In addition to conflicting with Supreme Court precedent,

legitimizing the de minimis exception would work serious

practical and equitable problems. As indicated earlier, two

methods could be used in determining whether a loss of good-time

credit is de minimis. The first is a comparative or percentile

approach, similar to that employed by the district court here.

Under this method, the number of forfeited days is divided by the

total number of days to which the inmate was actually sentenced

to produce a fraction or percentage of loss. Depending on the

court’s subjective view of whether the resulting quotient is de

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minimis, the inmate might or might not be entitled to due

process.

The other potential method is the absolute approach, which

was employed in Malchi. Under this approach, some number of days

is arbitrarily selected by the court, the deprivation of less

than which is deemed de minimis and thus not subject to due

process protection; deprivation of that or any greater number of

days would be sufficient to warrant due process protection.

Problems inhere in the application of both methods. For

instance, how and why would we draw the line at a particular

fraction or any particular number of days? What would be the

justification and reasoning to label, say, .18% de minimis, but

not .25%; or to label thirty days or less de minimis, but thirty-

one days or more not de minimis?

Difficulties with uniformity and equity in both methods

exist as well. An inmate sentenced to five years who commits a

trafficking offense could receive due process protection if

deprived of thirty days (thirty days is approximately 1.7% of

five years), but an inmate sentenced to forty-five years who

commits the same offense and loses the same thirty days would be

entitled to no due process protection, as thirty days is but .18%

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of forty-five years.60 It impresses us as patently unfair to

afford one inmate due process, but not another, when all factors

are the same except the length of their initial sentence or the

balance remaining to be served.

Interestingly, application of the relative approach could

implicitly overturn Malchi. There, we concluded that six months,

in and of itself, is “more than de minimis.”61 Under a

percentage or relative approach, however, even six months could

be considered de minimis. For example, if an inmate were

sentenced to sixty years incarceration, the forfeiture of six

months good-time credit would be less than one percent of his

sentence. We would have to ask whether six months, equaling less

than one percent of the actual sentence, should nevertheless be

considered de minimis. If so, how could this example comport

with our holding under Malchi’s absolute approach that six months

“is more than de minimis?” For Teague, the question would be

whether the deprivation of thirty days —— regardless of the

length of his actual sentence —— is always going to be de

minimis.

As the de minimis concept is contrary to Supreme Court

60
Of course, this result depends on the upper limit of a de
minimis loss. In this hypothetical example, if two percent were
the upper limit, neither inmate would be entitled to due process.
61
211 F.3d at 958.

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precedent and is a Pandora’s Box, the opening of which would let

loose myriad difficulties and inequities, we today hold that no

amount of previously earned good-time credit, however slight, can

ever be deemed de minimis and, more importantly, that any loss of

such credits that extends the inmate’s expectation of release is

never subject to a test for de minimis in the context of

procedural due process. The TDCJ-CID must afford its inmates

procedural due process before depriving them of any good-time

credit. If, as argued by counsel for the TDCJ-CID, this would

open the floodgates of disciplinary appeals, the prisons of Texas

can either use any of the innumerable alternative punishments

that do not offend due process or see to it that their inmates

receive the process that is due before taking away any good-time

credits.

D. Sufficiency of the Evidence

As an alternative basis for affirming the district court’s

judgment, the TDCJ-CID advances that the Code 15.0 trafficking

and trading offense of which Teague was found guilty is a strict

liability offense and that, as such, there was no need to

introduce any evidence of Teague’s knowledge of or participation

in Jordan’s deposit. We disagree.

At the time of Teague’s offense, Code 15.0 punished “[t]he

unauthorized buying, selling, exchange or transfer of any

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commodity from any individual, other than making authorized

purchases from the commissary (evidence may include an excessive

inventory of marketable items).” Nothing in the language of this

provision justifies a conclusion that it is a strict liability

offense, obviating the need for the TDCJ-CID to present evidence

of Teague’s knowledge or participation. Purchases, sales,

exchanges, or transfers are bilateral transactions that

necessarily require at least the knowledge of both parties, if

not the active participation of each. This provision simply

cannot be read to permit the TDCJ-CID to punish an inmate who has

no knowledge of or participation in an unauthorized deposit into

his trust account.

We perceive no error in the district court’s original

judgment based on the TDCJ-CID’s failure to offer any evidence of

Teague’s knowledge of or participation in Jordan’s deposit. Our

review of the record from the disciplinary hearing confirms that

the TDCJ-CID did establish that Jordan made an unauthorized

deposit; that record is devoid, however, of any evidence that

Teague had Jordan deposit the check or even knew about it.

III. CONCLUSION

Teague had a constitutional expectancy of early release to

mandatory supervision and thus a protected liberty interest in

his previously earned good-time credits. This entitled him to

27
due process protection before being deprived of any of his

credits through administrative or disciplinary proceedings. No

exception exists for a loss that is judicially perceived to be de

minimis, so none could even be considered. Accordingly, we

vacate the district court’s amended judgment holding otherwise,

affirm the district court in all other respects, and remand with

instructions that the district court re-enter its original

judgment to the extent that it granted habeas relief.

VACATED IN PART, AFFIRMED IN PART, AND REMANDED WITH
INSTRUCTIONS.

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