In the Court of Criminal
Appeals of Texas
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No. WR-44,786-06
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EX PARTE RICHARD ANTHONY RIVERS,
Applicant
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On Application for a Writ of Habeas Corpus
Cause No. 710442-D in the 178th District Court
From Harris County
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YEARY, J., filed a concurring and dissenting opinion in which
SLAUGHTER, J., joined.
The Court today addresses the two issues that we ordered this
application be filed and set for submission to determine. 1 In doing so, it
1 The two issues that the Court ordered this application to be filed and
set for submission to determine were: (1) “whether the policy of not releasing
an inmate to mandatory supervision on one concurrent sentence until the
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orders the Texas Department of Criminal Justice (TDCJ) to follow this
Court’s prior holding in Ex parte Forward, 258 S.W.3d 151 (Tex. Crim.
App. 2008), ultimately resulting in Applicant’s continued custody for his
ten-year concurrent sentence, subject to the Board of Pardons and
Paroles’ (BP&P) review for discretionary mandatory release (DMS).
Majority Opinion at 10.
I agree that Applicant’s continued confinement on this basis is
correct, and I concur in the Court’s denial of relief in the form of release
from actual custody. But I dissent to the Court’s qualified grant of
relief—if “paper parole” is any relief at all—in this case. See id. at 9
(“This will be a ‘paper parole’—a designation by TDCJ that Applicant is
on mandatory supervision release on one of his convictions, but is not an
actual, physical release of Applicant from TDCJ custody.”). The writ of
habeas corpus is an extraordinary remedy that is “to be used when any
person is restrained in his liberty.” TEX. CODE. CRIM. PROC. Art. 11.01.
The way I see it, inaccurate TDCJ paperwork does not, in and of itself,
equate to a restraint of liberty, and “The Great Writ” should not be
demeaned to the status of a mere paperwork-fixing procedure.
Having determined that Applicant is not entitled to immediate
release from confinement into constructive custody in the form of
mandatory supervision, the Court should not go on to grant Applicant
relief in the form of (essentially) only “constructive release” when such
inmate is eligible for release on all concurrent sentences is legal”; and (2)
“whether the Court’s decisions in Ex parte Forward, 258 S.W.3d 151 (Tex.
Crim. App. 2008)[,] and Ex parte Williams, 257 S.W.3d 711 (Tex. Crim. App.
2008) are applicable.” Ex parte Rivers, No. WR-44,786-06, 2021 WL 1395895,
at *1 (Tex. Crim. App. Apr. 14, 2021) (not designated for publication).
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relief does not go to either the fact or the duration of his restraint. To
the extent the Court grants that qualified relief without even addressing
questions with regard to cognizability and ripeness, I must dissent.
I. APPLICANT SHOULD REMAIN LEGALLY INCARCERATED
The Court’s disposition today orders TDCJ to immediately release
Applicant for mandatory supervision on his thirty-five-year sentence.
Majority Opinion at 10. It also orders TDCJ to “continue to calculate
[Applicant’s] time for this sentence and the sentences ordered to be
served concurrently therewith in accordance with our holdings in
Forward.” Id. The result is that Applicant will continue to remain
incarcerated due to his concurrent ten-year sentence, subject to review
for so-called discretionary mandatory supervision (DMS), and that the
duration of his confinement in the penitentiary will remain wholly
unaffected by Applicant’s constructive “release” from his first sentence.
I agree that this bottom-line outcome—continued confinement—
is the correct one. Applicant’s argument—that he must be released from
confinement because he has attained mandatory supervision on his 35-
year sentence, even though his concurrent 10-year sentence is subject to
DMS, and the BP&P has not seen fit to exercise its discretion to release
him on that sentence yet—has no merit. Applicant should, and will,
remain in custody on his 10-year DMS sentence, subject to TDCJ’s
discretionary authority. But it seems to me that denying Applicant relief
on that basis is all the Court should do.
II. UNRESOLVED ISSUES GIVE ME PAUSE
I cannot agree with the Court’s grant of “constructive release” on
Applicant’s 35-year sentence—at least not without further analyzing
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several issues that trouble me about granting that kind of relief. Until
such time that TDCJ’s failure to recognize Applicant’s entitlement to at
least “constructive release”—from actual custody into constructive
custody—on his 35-year sentence should somehow affect the BP&P’s
ability to properly exercise its discretion to grant him actual release into
constructive custody on his 10-year sentence, then he arguably has
nothing to complain about.
TDCJ’s failure has not yet been shown to affect “the fact or
duration of his confinement,” and therefore Applicant’s claim, at least
arguably, presents a claim that is neither cognizable nor ripe for our
consideration. See Ex parte Harrington, 310 S.W.3d 452, 456 (Tex. Crim.
App. 2010) (“Under Article 11.07, a person who files a habeas corpus
application for relief from a final felony conviction must challenge either
the fact or length of confinement.”); Ex parte Alba, 256 S.W.3d 682, 685
(Tex. Crim. App. 2008) (plurality opinion) (citing Ex parte Lockett, 956
S.W.2d 41, 42 (Tex. Crim. App. 1997), for the proposition that a claim
for relief in a post-conviction application for writ of habeas corpus, to be
cognizable, “must request a change of either the fact or the length of
confinement”).
The consecutive-sentence habeas cases do not necessarily counsel
otherwise. It is true that in Ex parte Williams, 257 S.W.3d 711, 712 (Tex.
Crim. App. 2008), the Court rejected an argument that was similar to
Applicant’s here: that he should be released on mandatory supervision
when he became eligible on his first offense even though he was serving
a consecutive sentence that was not mandatory-supervision eligible.
Though we rejected Williams’s argument, we still declared that he was
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indeed mandatory-supervision eligible on the first offense, “grant[ing]
relief as to that conviction.” Id. It was important to do so there, in the
context of consecutive sentences, because that would determine when
the second sentence began to run for purposes of calculating Williams’s
eventual release date for the combined sentences. See id. (“TDCJ shall
calculate his time for this sentence and the sentences ordered to be
consecutively therewith in accordance with our holdings in Forward.”).
Here, by contrast, the Court is not providing any actual relief to
Applicant that is going to impact his release date from incarceration in
this concurrent sentence situation. Declaring that Applicant is now
“constructively released” from his first sentence will not have any effect
on the timing of his ultimate release on DMS for the other sentence he
is serving concurrently with it. The Court’s action today does not impact
how long Applicant will be ultimately be “restrained in his liberty” in
the same way that ordering TDCJ to “classify” Williams as “eligible for
mandatory supervision release” had a direct impact on determining the
timing of his ultimate release from custody. Unlike with Williams’s
incarceration, “the fact and duration” of Applicant’s incarceration is
completely unaffected by the Court’s grant of “paper parole” today.
I cannot say for certain that this distinction between consecutive
sentences and concurrent sentences critically impacts such threshold
issues as cognizability and ripeness. But I suspect it does, and I am
certainly uncomfortable granting the qualified relief that the Court does
today—in post-conviction habeas proceedings—without addressing
these issues at all. See Johnson v. Moore, 77 N.E.3d 967, 968 (Ohio 2017)
(holding that “any claim for immediate release is unripe” because the
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maximum term had not yet expired); Kelsey v. State ex rel. McManus,
244 N.W.2d 53, 54 (Minn. 1976) (holding that “habeas corpus was not a
proper remedy” for a petitioner claiming the Minnesota Corrections
Authority violated his rights when he was refused access to his prison
base file prior to a parole hearing, because petitioner was not entitled to
immediate release if granted relief).
The Court has otherwise held, albeit in pre-trial settings, that
habeas “is not appropriate when resolution of the question presented,
even if resolved in favor of the applicant, would not result in immediate
release.” Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001),
citing to Headrick v. State, 988 S.W.2d 226, 228–29 (Tex. Crim. App.
1999) (citing Ex parte Ruby, 403 S.W.2d 129, 130 (Tex. Crim. App. 1966),
Ex parte Matthews, 873 S.W.2d 40, 43 (Tex. Crim. App. 1994)); Ex parte
Ruby, 403 S.W.2d 129, 130 (Tex. Crim. App. 1966) (holding, pending
appellate review, that “[t]he writ of habeas corpus is not available to
secure a judicial determination of any question which, even if
determined in the prisoner’s favor, could not result in his immediate
discharge.”). Other jurisdictions have held that the same is true in post-
conviction settings. See Kelsey, 244 N.W.2d at 54; People ex rel. Porter v.
Napoli, 56 A.D.3d 830, 831 (N.Y. 2008) (“Habeas corpus relief is
available only if an inmate can demonstrate that he or she is entitled to
immediate release from prison. An inmate is not entitled to immediate
release from prison until the expiration of his or her sentence.”) (internal
citations omitted). Today, the Court uncritically treats the Applicant’s
concurrent sentence situation as if it were completely controlled by our
consecutive sentence jurisprudence, without first exploring key
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threshold issues that will ultimately determine whether it is at all
appropriate to utilize the extraordinary remedy of habeas corpus to
grant the kind of “paper relief” it grants here.
III. CONCLUSION
“The Great Writ” has come a long way from its humble
beginnings, when post-conviction habeas corpus relief was available
only upon an applicant’s showing of a jurisdictional defect. Brown v.
Davenport, No. 20-826, 2022 WL 1177498, at *6–7 (U.S. Apr. 21, 2022);
see also Ex parte Crispen, 777 S.W.2d 103, 107 (Tex. Crim. App. 1989)
(Clinton, J., concurring) (describing the Court’s entertainment of the
“burgeoning of claims raised in post-conviction writs of habeas corpus”
after the United States Supreme Court “abandoned the fiction that
habeas reached only jurisdictional defects . . ..”). In this case, the Court
utilizes it as a vehicle to justify ordering TDCJ merely to fix what it
perceives to be faulty paperwork in Applicant’s file. Because the writ of
habeas corpus is an extraordinary remedy that should not be reduced to
trivialities without at least a cursory analysis of issues impacting
whether we should grant any relief at all, in this instance, I dissent.
FILED: May 18, 2022
PUBLISH