This is a continuation of ABCs and 123s of Parole Law: An Introduction to Parole Law Pt. 1 in the December 2020 issue of Voice for the Defense.
The initial article focused on introductory topics in parole law such as the Parole Board composition and voters, time credits, housing, and programming. In this article, I will focus on the parole voting process and related topics. As in the previous article, I will focus the subject into question and answer format. I do so for the simple reason that these are the most typical questions I receive from attorneys, which their clients also ask them.
Please note that that this article will cover the most common issues presented to criminal defense lawyers when discussing parole with their clients. There are a lot of nuances and sometimes there are exceptions but this is meant to be a thorough guide for the most common issues and areas that are commonly faced on a daily basis.
Anyone who knows me knows that I am passionate about my work and can talk about parole law for hours. With that in mind, after reading this article, if there are any questions you may have or want clarification regarding a topic please feel free to contact me and I’ll be happy to discuss.
What is parole?
Parole is the discretionary release of an offender by a Board of Pardons and Paroles decision to serve the remainder of a sentence in the community under supervision. There is NO RIGHT TO PAROLE, IT IS A PRIVILEGE. There is no liberty interest for release on parole. I say this, as many times, attorneys and offenders contact me about when an offender will get out. While there are factors to consider to estimate the likelihood of release on parole, there are no guarantees. Each case is decided on its own merits.
The parole review process starts 6 months before the Parole Eligibility Date (“PED”) for a first review and 4 months before a subsequent review. The review process is the mechanism wherein an offender’s case is assembled and prepared for the Parole Board to review. Among other things, the documents assembled may include court documents, police reports, disciplinary cases, work assignments, programming, and home plan verification, etc.
It is important to note that the PED is simply an eligibility date, not the date the case is going to be voted. Votes rarely happen on the actual PED. The Parole Board can vote on a case up to 2 months before the PED. They can even vote a case after the PED. Most votes occur a few weeks before or after the PED. If an offender or their family are planning on submitting materials to the Parole Board, they should send them at least 2 months before the PED.
It is important to note that the date of the PED is determined by the statute at the time of the commission of the offense.1 Therefore if you have a case that was indicted years after the offense occurred or is based on a probation revocation from years ago, you must check the parole eligibility on the date the offense occurred.
The risk factors used in evaluating a case are both static (non-changing) and dynamic (evolving). The static risk factors include age at first commitment, history of revocations, other incarcerations, employment history at the time of the offense, and the type of offense. Dynamic factors include current age, threat group membership, education, disciplinary conduct, and current custody level.
Additionally, the type of offense the offender is currently serving is taken into account as well. This is called the “offense severity class.”
The risk factors and offense severity class are given numbers which are then “tabulated” to give a Parole Guidelines Score from 1-7, with 7 being the most likely to succeed on parole.
How much time will an offender serve before parole eligibility?
Naturally, this is the most common question posed to attorneys when a client is looking at a prison sentence. In general, it depends on whether the offense is aggravated or non-aggravated.
Aggravated Offenses are found in 508.145 of the Texas Government Code. They include:
- 42A.054(a)/3G offenses (other than Capital Murder)
- Any offense with an affirmative finding of a deadly weapon
- 20A.03 Continuous Trafficking of Persons
- 71.02 Engaging in Organized Criminal Activity
- 71.023 Directing Activities of Criminal Street Gangs
For aggravated offenses, an inmate is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good time equals ½ of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release in less than 2 calendar years.2
So for aggravated offenses, an offender must serve ½ their sentence without regard for good time before becoming eligible for parole. Good time has no impact on parole eligibility for aggravated offenses. And the first two years are to be served as “flat time”, meaning that a 2-year sentence would mean they would serve all two years.
For all non-aggravated offenses, an inmate is eligible for release when the inmate’s actual calendar time served plus good conduct time equals ¼ of the sentence imposed or 15 years, whichever is less.3
If you recall, offenders serving a non-aggravated sentence receive good conduct time of roughly 30 days for every 30 days served (assuming they are in good disciplinary status).4 For example, an offender who is sentenced to 8 years on a non-aggravated offense will be eligible for parole after serving approximately 1 year of their sentence in custody. That is because their calendar time (1 year) plus good time (1 year) equals 2 years or ¼ of their sentence. If that client has backtime credit, you can see how they may be eligible rather quickly even while looking at a somewhat lengthy sentence.
There are a few other offenses that do not fit squarely into the aggravated/non-aggravated scenarios. Those are covered in Texas Government Code 508.145 (a) Sentence of death, a life sentence without parole, and convictions under 21.02 and 22.021(f) of the Texas Penal Code (no parole), 508.145 (b) Capital Felony when the inmate was younger than 18 (40 years until parole eligibility), and 508.145 (c), repeat sex offenders (35 years until parole eligibility).
Drug-Free Zone cases present an interesting twist. Although not considered an aggravated offense, they have a unique parole eligibility consideration. An inmate serving a sentence for which the punishment is increased under 481.134 (H & S Code), is not eligible for release on parole until the actual calendar time served, without consideration of good conduct time, equals 5 years or the term to which the inmate was sentenced, whichever is less.5 This means that an offender who receives a sentence for an offense in a drug-free zone will have to serve the first 5 years of their sentence before becoming eligible for parole (without consideration of good time).
So as you can see, the difference between a plea or sentence to an aggravated or non-aggravated offense can have a huge impact on when an offender will be eligible for parole. Once again, please note that even if an offender is eligible for parole, it does not mean they will receive a favorable vote.
What are the chances an offender will make parole?
As mentioned in the previous article, the overall parole approval rate last year was 35%. That number included all offenders eligible for parole: aggravated, non-aggravated, first-time offenders, repeat offenders, parole violators, etc. So as you can see, that number can be deceptive at first glance. Let’s take a closer look.
A popular rumor in prison is that non-aggravated offenders get out quicker than aggravated offenders. While it is true that a non-aggravated offender is eligible sooner than an aggravated offender, they are not automatically more likely to be released sooner. In addition to the Parole Guidelines Score, there are other factors the Board considers when reviewing a case. In general, offenders who stay out of trouble and don’t accumulate disciplinary infractions are looked upon more favorably. Offenders who engage in educational, vocational, and faith-based programming show the Board that they are making good use of their time. Additionally, offenders who are well-educated, who have work experience, and a solid parole plan make great candidates for parole.
There is no “one size fits all” approach to when or how soon an offender will be released. It can be suggested that a first-time offender who is serving a sentence for an aggravated offense might be a lower risk than a repeat offender who commits the same types of offenses over and over again. In other words, a well-educated aggravated offender with significant job skills and work history who otherwise had never previously been arrested may be a better candidate for parole than an uneducated, repeat non-aggravated offender. As you can see, while a non-aggravated case may get an offender eligible for parole quicker, it does not mean they will necessarily be granted parole faster.
What is Discretionary Mandatory Supervision?
Discretionary Mandatory Supervision (“DMS”) is one area of parole law that is shrouded in mystery among offenders and attorneys alike. DMS is also referred to as “Mandatory Date”, “Short Way”, or “Projected Release Date” in TDCJ vocabulary. These terms are all synonymous.
DMS is the legislatively mandated release of a prisoner to parole supervision when the combination of actual calendar time and good conduct time equal the sentence.
It is important to first study the history of DMS. When first implemented in 1977 all offenses were eligible for DMS (then called Mandatory Supervision). That is, once an offender reached roughly half of their sentence, if they had not already been released on parole, they were released on mandatory supervision.6
Year by year, various “disqualifying” offenses were added to the list that rendered an offender ineligible for DMS. However, the basic rule still applied: if an otherwise eligible offender was behaving, they would serve approximately half of their sentence before being released (calendar time plus good time equaling their sentence). Plus if you were previously convicted of a disqualifying offense, but you came back to prison on a separate offense, you would be eligible for DMS review on your new case.
The disqualifying offenses for DMS are listed in Texas Government Code 508.149. Please note these offenses are more expansive than 3G offenses. For example, Robbery and Arson are disqualifiers for DMS but are not aggravated offenses.
By 1996, Mandatory Supervision was changed to Discretionary Mandatory Supervision. This was a major change in the law, as now offenders would not “automatically” be released once they had served half of their sentence.
Additionally, the change in law barred offenders for DMS review who had previous disqualifying offenses. That is, if you were previously convicted of a disqualifying offense, you would never again be eligible for DMS. You will, however, still be voted for parole when eligible. Not being eligible for DMS has no impact on your general parole eligibility.
Can you give me an example of DMS eligibility?
Simply put, once an offender’s actual time plus good time equal their sentence, they will be considered for release for DMS. The best way to think about DMS is the following. Consider a client sentenced to 8 years for a DMS eligible case. That client will be reviewed for parole after serving ¼ of their sentence, which would be 1 year of actual time plus 1 year of good time = 2 years. If denied, they will be reviewed again and if denied, reviewed again, etc. However, once they approach the halfway point of their sentence they will be reviewed for DMS. That is, once their calendar time plus good time equals their sentence (4 years calendar plus 4 years good time = 8 years) they will be reviewed for DMS and not parole. If denied at that time, they will continue to be reviewed for DMS and not parole in subsequent votes.
So what makes DMS voting different?
As opposed to voting an offender for parole, the DMS law establishes due process safeguards. “The statute confers a liberty interest in the eligible inmate and the statutory presumption is slanted toward release. The parole panel must justify non-release. Unlike parole, which requires that the Board vote in favor of release, the mandatory supervision statute requires that the offender be released absent Board action to the contrary.”7
When considering a case for review under DMS, the Board must vote to release UNLESS there is a finding that the:
- Offender’s good conduct time is not an accurate reflection of the offender’s potential for rehabilitation, and
- Offender’s release would endanger the public.
Offenders under review for DMS must also be given written notice that they are under review. They must be given at least 30 days to provide supporting documents to the Parole Board. If granted release under DMS, an offender will be supervised in the community similarly to someone released on parole.
The other thing to consider with regards to DMS is that opposed to parole, the Parole Board must vote the case before the DMS date. If you recall, the PED is just a date the offender is eligible for parole. Many offenders are voted on parole after their eligibility date. However, DMS is different. If the Parole Board fails to vote before the DMS date, the offender must be released. This happens occasionally when an offender is sentenced to a short prison sentence but has a lot of backtime credit by the time they enter TDCJ. By then they have already passed their DMS date. These are considered Retzlaff cases and they will be released without even a vote.8 If you have a case wherein a client is eligible for DMS and they are sentenced to a short sentence (i.e. 2 years) with a year of backtime, contact my office to discuss.
To sum up DMS, offenders are eligible for DMS if they have no prior or current sentences for DMS disqualifying offenses listed in 508.149. Most offenders are eligible for DMS when they have served roughly half of their sentence. The important thing to know about DMS is that for virtually all offenders who are eligible, they will be reviewed for parole a few times before becoming eligible for release on DMS. If they are not DMS eligible they will still be voted for parole like any other offender. Given the nature of the “Discretionary” addition to DMS in 1996, now that DMS release is not “automatic”, its relevance to many offenders is not as important as before. Finally, when considering a plea offer to an offense, it is usually far more important if the offense is aggravated or non-aggravated than whether it is eligible for DMS.
Being eligible for DMS does have some significance when we discuss Parole Revocation Hearings in the forthcoming article.
What are disqualifying offenses for DMS?
An inmate may not be released to mandatory supervision if the inmate is serving a sentence for OR has been previously convicted of the following 508.149 offenses:
- Agg. Assault, 1st or 2nd Degree
- Agg. Kidnapping, 1st or 2nd Degree
- Agg. Robbery, 1st or 2nd Degree
- Agg. Sex Assault, 1st Degree
- Any Deadly Weapon finding
- Arson, 1st Degree
- Burglary of Habitation, 1st Degree
- Capital Murder
- Compelling Prostitution
- Criminal Solicitation (1st Degree)
- Continuous Sex Abuse of Child
- Indecency with a Child
- Injury to a Child, 1st Degree
- Murder, 1st or 2nd Degree
- Robbery, 2nd Degree
- Sexual Assault
- Sexual Performance by a Child
- Trafficking of Persons 20A.03 & 20A.02
- Engaging in Organized Criminal Activity/Directing Street Gangs
- A felony Increased under Health and Safety Code (Drug-Free Zones & Use of Child in Commission of Offense)
Parole/Discretionary Mandatory Supervision was denied, how long until the next review?
When an offender is denied a release, the subsequent date they are reviewed again is called a “set-off.” In general, all offenders get an annual review after a denial decision.
However, offenders currently serving a sentence for an offense under Texas Government Code 508.149 or Texas Penal Code 22.04 (2nd and 3rd-degree felony) are subject to a set-off from 1 to 5 years. Basically, if you are currently serving a sentence that is listed in 508.149, you can be set-off for up to 5 years.
For example, if an offender was previously convicted of Aggravated Robbery (listed in 508.149) but they are currently serving a sentence for DWI, they will be subject to a potential 1-year set-off. The set-off rule only applies to sentences an offender is currently serving.
Offenders serving a sentence under Texas Penal Code 20A.03, 21.02, 21.11(a)(1) or repeat sex offenders under 508.145(c) have a minimum 3-year set-off. Offenders serving a sentence for Aggravated Sexual Assault or a life sentence for a capital felony have a minimum 3-year set-off with a maximum of 10 years.
Are there any ex post facto issues in regards to set-offs?
Unfortunately, set-offs can be applied retroactively. Earlier we mentioned that the PED must be determined based on the date the offense occurred, not the law in effect today. However, for set-offs, that is not the case. That is, an offender who is subject to a 1-year set-off on the day they were sentenced can be subject to a longer set-off if the law is changed in the future. “The Board’s ability to impose a longer set-off between parole reviews creates only a speculative risk of increased punishment. The change in parole laws did not mandate that the Board impose a longer set-off, it simply vested the Board with the discretion to do so.”9
What is Parole in Absentia?
Parole in Absentia (PIA) is when an offender is voted on parole while not in the custody of TDCJ. That usually means they are in custody in a county jail or a federal prison. In practice, I usually see PIA in two situations. The first is when a client is in county jail awaiting transport to prison on a short sentence and has a lot of backtime, especially if they are DMS eligible. The other situation is rather unique and interesting.
A little known fact of criminal law in Texas is that offenders sentenced to 10 years or less can choose whether to stay in county jail or go to TDCJ if appealing their conviction. Article 42.09, Sec. 4 of the Texas Code of Criminal Procedure reads:
If a defendant is convicted of a felony, is eligible for release on bail pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred to the Texas Department of Criminal Justice on a commitment pending a mandate from the Court of Appeals or the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court.10
Texas law has clarified that the term “upon request” means that the request has to come from the offender. “Thus, where a defendant receives a sentence of ten years or less, he may only be transferred to the Department of Corrections if he so requests.”11 Therefore, the offender chooses where to spend their time pending appeal. This potentially has parole implications to consider.
Many times, an offender would prefer to stay in county jail when appealing their sentence. Usually, the county jails are closer to their family and have liberal visitation schedules and easy access to phone calls. Plus, they are still gaining credit towards their sentence.
However, for an offender who already has significant backtime and is going to be eligible for parole rather quickly, the offender may choose to go to TDCJ while their appeal is pending. Even though the client will be reviewed for parole in county jail when their PED approaches, it may benefit the client to go to TDCJ. There are a few reasons for this. Most county jails do not have the wide array of job assignments or programming that TDCJ offers. Many times an offender will sit in county jail for months or years without any meaningful job assignment (if any), educational classes, or vocational instruction. However, TDCJ generally has options for offenders to learn new job skills, study a trade, and engage in a multitude of rehabilitative classes. When the offender is reviewed for parole (while pending appeal) they can at least show they have: been working their job assignment, staying out of disciplinary trouble, and engaging in programming. The offender who stayed in county jail may not be able to show the same when being reviewed. This is a determination that should not be made hastily and should be made with the advice of counsel.
In the next article, I will discuss the Parole Revocation Hearing Process.