Sean David Levinson

As many of us know, substance abuse is a common factor in criminal defense work. On any typical day, a felony courtroom anywhere in the state of Texas (or any state for that matter) may see dozens of cases, and I would venture to argue that the majority have a substance abuse component to them.  As some of these cases are non-violent or non-aggravated, many of these clients are screened for drug rehabilitation programs as part of a probation recommendation. Some of these clients get sober, complete the required program, and go on with their lives.

Unfortunately, many clients relapse and find themselves in the unfortunate situation of another charge and perhaps enhanced penalties. Research shows that those who use drugs are more likely to offend than those who do not use drugs. Drug users were 7-8 times more likely to offend than nondrug users.¹ Drug users are also more likely to reoffend. 65% of drug offenders are rearrested within 3 years of release from prison, 74% were arrested within 5 years, and 81% percent within 10 years.² Perhaps the next time your client is discussing their drug addiction, it might be helpful to consider where this behavior first started and how it led to their current situation. Perhaps we are treating the symptom and not the catalyst for the addiction.

When I reflect on the large number of cases I’ve worked on over the past 20 years, it’s clear that a surprisingly high number involved substance abuse, albeit many times that was not the offense charged. For some offenses, like possession of a controlled substance or driving while intoxicated, the substance abuse was clear. However, in many of the other cases, it was an essential element for the actions committed. In my experience virtually all property-related crimes involve substance abuse issues. For example, an addict needing to secure funds to support their habit might commit a burglary or robbery. So the offense was charged as a property-related crime, but the underlying issue is substance abuse.

From there I started to notice that many of my clients had suffered significant childhood trauma. I began to think about the relationship between drug addiction and childhood trauma. Even more so, these addiction problems sometimes began years later and continued decades after the trauma. Surely there must be a connection? How was it that so many of my who clients were deep in addiction also had suffered significant trauma during their formative years? It surely couldn’t be a coincidence that persons who underwent troubling and significant distress during their childhood later turned to drugs. After all, no one wakes up wanting to be a drug addict. The drugs must be a means to an end; to ease the pain and to help forget of the terrifying ordeals they went through and continue to endure today as a result of their trauma.

Due to my curious nature, I started doing some research to see if there was any research on the subject. This led me to the study of ACEs (Adverse Childhood Experiences), an article by Jane Ellen Stevens, and a research article in the American Journal of Preventative Medicine.^{3 4} This literature began to put the pieces together of the puzzle that had been eluding me for years.

So what are Adverse Childhood Experiences (“ACEs”) and why should we care? ACEs are basically traumatic events that occur before the child turns eighteen (18). ACEs can take many forms like abuse, trauma, and violence and be both direct and indirect. The study of ACEs looks at the relationship of childhood trauma and adult health risk behaviors and disease.⁵ This does not solely include drug addiction. Evidence from epidemiological and neurobiological studies suggest ACEs such as sexual and physical abuse and related adverse experiences to be closely related to enduring brain dysfunctions that, in turn, affect physical and mental health throughout the lifespan.⁶

In essence, an ACE questionnaire asks ten (10) questions regarding childhood trauma.⁷ These question categories cover topics such as psychological abuse, physical abuse, sexual abuse, substance abuse by a parent, depression in the household, and loss of a parent. Research suggests that a high ACE score leads to a greater risk of chronic disease, mental illness, substance abuse, and similar issues.^{8 9 10}

Compared to people with zero (0) ACEs, people with ACE scores are two (2) to four (4) times more likely to use alcohol or other drugs and to start using drugs at an earlier age.¹¹ People with an ACE score of five (5) or higher are seven (7) to ten (10) times more likely to use illegal drugs, to report addiction, and to inject illegal drugs.¹²

Research has shown that drug use is the coping behavior that people adopt because they weren’t provided with a healthy alternative when they were young.¹³ Many young people exhibiting early signs of trauma such as trouble concentrating, acting out, depression, or anxiety are placed on prescription drugs to calm them down. While the intent behind this is surely commendable, research shows that the body “keeps score”.¹⁴ That is, the brain of someone who suffered multiple ACEs is still triggered by things that remind them of their trauma. Zoloft, Ritalin, and other related prescription drugs do not erase those triggers, memories, or flashbacks.¹⁵ Similarly, narcotics ease the pain, albeit temporarily.  The linking mechanisms appear to center on behaviors such as smoking, alcohol or drug abuse, overeating, or sexual behaviors that may be consciously or unconsciously used because they have the immediate pharmacological or psychological benefit as coping devices in the face of the stress of abuse, domestic violence, or other forms of family and household dysfunction.¹⁶

As mentioned earlier, high ACE scores do not only lead to drug usage. They also can lead to significant health issues. An ACE score of four (4) or more nearly doubles the risk of heart disease and cancer. It increases the likelihood of becoming an alcoholic by 700 percent and the risk of attempted suicide by 1200 percent.¹⁷ Exposure to four (4) or more ACEs also had an increased risk for sexually transmitted disease, physical inactivity, and obesity.¹⁸ Exposure to higher numbers of ACEs increased the likelihood of smoking by the age of 14, chronic smoking as adults, and the presence of smoking-related diseases.¹⁹

Exposure to ACEs can also affect a person’s mental health and related behaviors. There is clear evidence that ACE and ACE-related disorders are associated with enduring effects on the structure and function of neural stress-regulatory circuits such as for example the hippocampus, the amygdala or the ACC (anterior cingulate cortex) and promote alterations in stress sensitivity and emotion regulation in later life.²⁰ Exposure to ACEs can create disturbances in cognitive and affective processing such as a heightened attention toward threatening stimuli, heightened experience of loneliness, social cognitive functioning, and social interactions including aggressive behaviors.²¹

According to Jane Ellen Stevens’ article, some practitioners consider addiction to be the wrong term to describe those addicted to drugs. It is argued that the term “ritualized compulsive comfort-seeking” should be used instead.²² They state that “ritualized compulsive comfort-seeking” is a normal response to the adversity experienced in childhood, just like bleeding is a normal response to being stabbed.²³

As you can see, exposure to ACEs can have detrimental, long-term effects on a person’s personality, behavior, and cognitive functioning, as well as their physical well-being. These do not simply go away when someone becomes an adult. They stick around and affect choices that are made on a daily basis years after the trauma.

So where do we go from here? Why is this important? As any responsible attorney, let alone compassionate human being, one might consider questioning their clients during interviews about their childhood. Instead of focusing on the drug usage, it might be more helpful and probative to inquire about the reasons for the addiction. “Dig a little deeper,” I would say.  

Think of it this way, drug treatment without treating the root cause is like putting a band aid on a bullet wound. We can treat the symptoms, but we won’t see lasting results until we take the bullet out and let the healing begin. Likewise, our clients dealing with debilitating drug addiction will not get better until we discover the root cause(s) of their addiction. Once we identify and treat the reasons for the addiction, the need for drugs dissipates. For many clients, a referral to a therapist can make all the difference. Therapy with a trained mental health counselor is fundamental in addition to rehabilitation with a drug treatment provider.

Many times, during a negotiation or sentencing hearing, attorneys argue that their client had a difficult upbringing. Later on, they also discuss drug usage. However, in my experience it is rare for attorneys to connect the dots to show the relationship. That relationship absolutely exists, so we must connect the dots to help the judge and the jury see the complete picture.

Hopefully this article gave you something to think about. While so many of our clients are struggling with drug addiction, the “root cause” of their forage into substance abuse likely had its basis in childhood traumas and struggles decades earlier. While this does not condone or excuse the offending behavior, it surely puts a different light on it and the many reasons for the conduct and actions that follow. Perhaps the next time your client is discussing their drug addiction, it might be helpful to consider where this behavior first started and how it led to their current situation.

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 and ABCs and 123s of Parole Law: An Introduction to Parole Law Pt.2 in the January/February 2021 issue of Voice for the Defense.

For starters, let’s review basic parole eligibility. Offenders convicted of aggravated offenses will serve ½ of their sentence before becoming eligible for parole. Good conduct time is not awarded to these offenders. Offenders convicted of non-aggravated offenses will be eligible for parole upon serving 25% of their sentence. This 25% includes actual custody time and good conduct time. For simplicity’s sake, we calculate good conduct time as 1 day credited for each day in custody. Therefore, offenders are actually eligible for parole on non-aggravated offenses after serving just 1/8 of their sentence.

The Scenario

Let’s say it’s a leisurely Monday afternoon and a potential new client walks into your office. The client mentions that they were arrested for a misdemeanor DWI on Friday night and were given a PR bond the same day. You think to yourself, “Great, I’ve handled many DWI’s in the past, I can’t wait to get started.” Then the client says, “Oh, by the way, I’m also on parole! I might have a Blue Warrant; can you get it lifted? If not, how long will I be in custody? What will happen if I am convicted of the new offense?” As you slump back in your chair, you realize, I need to speak to a parole attorney ASAP. Before you pick up the phone to call my office, this article will provide you a guide to some of the common issues presented in these situations.

The Basics

So, let’s talk about parole revocations and how you can advise your client when presented with this scenario. Parole revocation caselaw starts with the landmark Supreme Court decision Morrissey v. Brewer, 408 U.S. 471 (1972). In Morrissey, the Court held that parole revocations are not part of a criminal prosecution and thus the “full panoply of rights does not extend to parole revocations”. The Court did hold that parole revocation hearings do call for “some orderly process, however informal”. The Morrissey holding establishes the following minimum rights of due process in parole revocation hearings:

• Written notice of claimed parole violations;
• Disclosure to the parolee of evidence against him;
• Opportunity to be heard in person and to present witnesses and documentary evidence;
• The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
• A “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
• A written statement by the fact finders as to the evidence relied on and reasons for revoking parole.

Why Might a Blue Warrant be Issued?

First and foremost, all offenders are given parole conditions that they must abide by when released on parole/discretionary mandatory supervision (“DMS”). Failure to abide by of any of these conditions could result in a violation being filed and a parole warrant (aka, Blue Warrant) being issued. Offenders who are on parole/DMS may be subject to Blue Warrants for technical or new offense violations. These Blue Warrants are NO BAIL.

Technical violations typically include:

• Failure to report
• Delinquent parole fees
• Positive drug tests
• Failure to reside in an approved location
• Home monitoring/curfew violations

New offenses

• Class C and up offenses.¹

When will a Blue Warrant be issued?

Traditionally, a Blue Warrant will be issued anytime an offender is accused of a technical or new offense violation. Recently, there have been some changes to Blue Warrant issuance.

Technical violations will still continue to result in Blue Warrants. Those hearings will be conducted within 41 days of the blue warrant being executed.

New Offense violations are now subject to new rules. TDCJ-Parole Division (“Parole Division”) will now issue Blue Warrants upon notice of a new offense under different parameters. They will no longer “automatically” issue Blue Warrants due to a new offense violation. Blue Warrants for new offenses will be issued according to a new tier system.

Offenses in the first tier (Murder, Sexual Assault, etc.) will result in Blue Warrants being issued automatically. Those cases will have both preliminary and revocation hearings within 41 days. 

All other offenses will not result in an automatic warrant issuance. Instead, those offenders will be free to post bond on their new offense and resume parole supervision. Once those cases are indicted, the Parole Division may staff those cases to determine if a warrant shall be issued. If no Blue Warrant is issued, the offender will continue on supervision until the case is adjudicated. Upon adjudication, the Parole Division may issue a warrant and proceed to a hearing.²

Please be careful with these situations involving a Blue Warrant and a new criminal charge. Often, a client will bond out prior to the Blue Warrant issuance. This usually happens when an offender is arrested on a weekend and the Blue Warrant doesn’t issue until Monday morning (for those offenses subject to automatic warrant). If the offender is later taken into custody on the parole hold, they will not be “in custody” on the new criminal case. A consideration should be made into raising their bond on the criminal case so the client gets credit for both the parole case and the new law violation.

Where will hearing take place?

Once a Blue Warrant is executed the preliminary/revocation hearing will take place in the county where the client is located, not necessarily where the violations occurred. That is, the county the warrant was executed in determines where the hearing will take place. So a client who is reporting to parole in Dallas but was arrested in Houston, will have their hearing in Houston. (If the basis for the Blue Warrant was for a new criminal offense, the client may be “bench warranted” back to the county where the criminal offense is pending.)

Who is present at the hearing?

Hearings are presided over by hearing officers, who are employees of the Texas Board of Pardons and Paroles (“Parole Board”), not the Texas Department of Criminal Justice (“TDCJ”). The hearing officers conduct hearings to determine whether a violation occurred and make recommendations to the Parole Board. In these hearings, the hearing officer presides over the case much like a judge in a courtroom. Hearing officers examine witnesses, rule on admission of evidence, and make rulings regarding motions and objections, among other duties.³ The parole officer, employed by the Parole Division, acts much like a prosecutor in a courtroom. The offender is present at the hearing along with their attorney, if one has been appointed or retained. As mentioned earlier, the Hearing Officer may examine witnesses in addition to the parole officer and offender/attorney.

Who gets a Hearing and when are they informed about the Allegations?

Every offender accused of a violation is entitled to a hearing. The offender (and attorney if appointed/retained) must receive the hearing packet (aka, discovery) within 3 days of a preliminary hearing and 5 days before a revocation hearing. Prior to scheduling a hearing, the offender will be asked if they want to have a hearing or waive it. As a general rule, it is advisable to never waive a hearing.

Does the Offender have a right to Counsel?

While an offender may hire an attorney, there is no automatic right to counsel in parole revocation hearings. However, the Parole Board can appoint an attorney in certain situations. The Board may appoint an attorney based on the following factors:

1. Whether the offender is indigent;
2. Whether the offender lacks the ability to articulate or present a defense or mitigation evidence in response to the allegations; and
3. The complexity of the case and whether the offender admits the alleged violation.⁴

This request for an attorney can come from the offender, parole officer, or hearing officer. In my experience, the Parole Board errs on the side of caution and will not hesitate to appoint an attorney to an offender they believe cannot adequately represent themselves; this usually happens because of a low IQ or mental illness.

What types of hearings are there?

There are two types of hearings: preliminary and revocation.

A preliminary hearing will take place if an offender is accused of a new law violation. The burden to sustain an allegation is low: probable cause. If probable cause is found, the case is usually continued to a later date to hold a revocation hearing after the criminal case is adjudicated.⁵ The client will remain in custody pending the outcome of the criminal case and the subsequent revocation hearing.

Revocation hearings are held for technical-only violations and for new offense violations that have been adjudicated in court. At this hearing, the burden is preponderance of the evidence. Please note, that just because a criminal case was dismissed, DOES NOT mean there will not be a revocation hearing. The burden is preponderance, not beyond a reasonable doubt!

What are the Preliminary and Revocation Hearing Procedures?

Both preliminary and revocation hearings have two parts, a fact-finding and an adjustment portion.

The first part is considered the fact-finding portion, much like a trial. Documentary evidence is submitted, and testimony is taken from witnesses who are subject to cross-examination. Likewise, objections can be made to introduction of documents or testimony. The offender can testify if they so chose.

In preliminary hearings, the parole officer usually submits the Probable Cause affidavit as evidence to support their burden. Clients should be warned that any testimony they give is under oath and can be used against them as impeachment at trial. Therefore, most of the time it is inadvisable for a client to testify at preliminary hearings.

Due to the low burden, success for offenders at preliminary hearings is generally low. However, the offender can call witnesses to the hearing. These witnesses could include law enforcement, eyewitnesses, and even the alleged victim(s). As all testimony is under oath and recorded, this could be useful for impeachment at a subsequent trial.

If the requisite burden is not met at either type of hearing, the case will not advance any further. This would be akin to a Directed Verdict at a trial.

If the requisite burden is met, the hearing will move on to the adjustment portion, which is akin to a sentencing hearing at a trial. During this part, the parole officer will testify as to the offender’s adjustment during supervision. They will advise the hearing officer as to the offender’s overall compliance with parole conditions, prior warrants, employment status, drug test results, and home plan verification.

Offenders can also testify, submit documents, and present live witness testimony during this stage. Most cases are won or lost at this stage.⁶ Even though there may be a finding as to an allegation at a revocation hearing, the evidence presented at the adjustment portion may make the difference between a revocation and a less severe punishment. It is vital to present mitigating factors during the adjustment portion. This is the only opportunity the hearing officer will have to gather information about the offender’s life, hardships, accomplishments, and lessons learned. 

Mitigating factors might include:

• Client’s character
• Good moral standing in the community
• Job skills
• Employment history
• Family
• Education
• Mental health concerns
• Medical issues, etc.
• Future educational, professional, and personal goals

At the conclusion of the hearing, the parole officer will make a recommendation. The hearing officer will then conclude the hearing without making a recommendation. The hearing officer will type up a report and send it to the local Parole Board with their recommendation. A Parole Board analyst reviews the file and makes their recommendation to the Board who then issues their decision. The Board’s decision is later tendered to the offender in person.

What are the possible outcomes?

The Board has 30 days to issue a ruling on the case. A majority of the 3 voters is required for a ruling. The Board can then:

• Accept the findings of the Hearing Officer and Analyst, (most common)
• Overrule their findings, or
• Send the case back to the Hearing Officer for further development of factual or legal issues.

If the Board accepts the findings, they will then determine what sanction to impose. Generally, the Parole Board takes a graduated sanctions approach to violations. The possible outcomes from a revocation hearing are:

• Return to Supervision (possibly with new or modified conditions)
• Intermediate Sanction Facility (ISF)
• Substance Abuse Punishment Facility (SAFP)
• Revocation

Can you appeal the results?

An offender can only appeal a Board’s decision if the vote was to REVOKE. If so, then the offender has 60 days from the Board’s decision to file a Motion to Reopen. This motion must be based on:

• Newly discovered evidence,
• Findings of fact that are not supported by preponderance of credible evidence or are contrary to law, or
• Procedures followed in the hearing are violative of the law or Parole Board Rules.⁷

What happens after the Parole Board’s decision?

If offender is returned to supervision, they will be released from custody and resume parole supervision. If ordered to go to ISF or SAFP, they will wait in the county jail until a bed opens and then be transferred. Upon completion of ISF or SAFP, the offender will resume parole supervision. Even though offenders ordered to attend ISF and SAFP will be housed in prison to complete their program, this is not considered a revocation. For offenders who are revoked, they will remain in the county jail until they are transferred to TDCJ.

What about street time credit for those who are revoked?

If the offender is sentenced to ISF or SAFP, they will eventually be returned to supervision upon successful completion of the program. If the client is revoked, however, the stakes are much higher. Most offenders are worried about losing their street time if revoked for parole. Certainly, offenders who are revoked will get credit for the time they spent in custody prior to being paroled and any time they spent in custody after the blue warrant was executed. However, they may not keep their street time.

To determine if an offender will keep their street time, we must look at two things: their criminal convictions and how long they have been on parole. Offenders will get credit for street time upon revocation if:

• They have no current or previous convictions for offenses in 508.149 of the Government Code (DMS disqualifying offenses), and
• They must have been on parole/DMS for at least ½ of their supervision term at the time the Blue Warrant was issued.

Being eligible for DMS is not as much of a concern for offenders going to prison but it has greater impact on revocations. Now you can see why although DMS has “lost its bite” for many offenders when up for review, it is crucial in determining street time credit.

To be clear, if an offender is currently on parole for or has ever been convicted of a 508.149 offense, they will NEVER be eligible to “keep” their good time upon revocation now or in the future!

Additionally, upon revocation any good conduct time the offender earned prior to being released on parole/DMS will be forfeited.⁸

Let’s take a look at some examples to give you a good understanding of parole revocations and street time.

Example 1:

• Client has no prior felony convictions.
• Client is sentenced to 8 years for DWI.
• Client was eligible for parole after serving 25% of their sentence
• 1 year of actual time + 1 year of good time=25%
• Client was granted parole after serving 1 year of actual time.
• Client is placed on parole for remainder of sentence: 7 years
• Client is on parole for 5 years and is then revoked.

What about street time? Is client DMS eligible? YES. (No convictions for 508.149 offenses)

Has offender completed at least ½ of their parole at time of Blue Warrant: YES.

Therefore, client will return to prison with 1 year of actual time served plus 5 years of street time. In essence, client has “banked” 6 years towards their sentence. The client does lose the 1 year of good conduct time, but that is eclipsed by the street time credit.

Example 2:

• Offender has 2 previous felony convictions for POCS.
• Client is sentenced to 8 years for DWI.
• As in the prior example, let’s assume client was granted parole at their first review after serving 1 year of actual time.
• The client is placed on parole for the remainder of sentence: 7 years
• Client is on parole for 3 years and is revoked.

What about street time? Is client DMS eligible? YES.

Has offender completed at least ½ of their parole at time of Blue Warrant? NO.

Therefore, client will return to prison without credit for any of their 3 years of street time. They will also lose the 1 year of good time they accumulated prior to being released. Client will go back to prison with just 1 year of custody credit.

Example 3:

• Offender has 2 previous felony convictions: A 1997 conviction for Aggravated Assault with a Deadly Weapon and a 2005 conviction for Evading Arrest in a Vehicle.
• Client was sentenced to 8 years for DWI.
• As in the above examples, client was released on parole after their first review after serving 1 year of actual time. The client is on parole for the remainder of sentence: 7 years.
• Client is on parole for 6.5 years and is revoked.

What about street time? Is client DMS eligible? NO (Aggravated Assault with a Deadly Weapon is a DMS disqualifier) No need to go to any further.

Due to the client not being eligible for DMS, they will return to prison without their 6.5 years of street time. They will also lose the 1 year of good time they accumulated prior to being released. This client will go back to prison with just 1 year of credit.

In the above examples, the offenders will re-enter the parole review process once they have the requisite credit. They will be eligible for parole just like any other offender. For offenders who “keep” their street time after being revoked, they may be eligible immediately upon returning to prison.

As you can see there are a lot of moving parts to the parole revocation process.  Please feel free to contact me with questions regarding any parole topics.

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:

1. Offender’s good conduct time is not an accurate reflection of the offender’s potential for rehabilitation, and
2. 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, 1^st or 2^nd Degree
• Agg. Kidnapping, 1^st or 2^nd Degree
• Agg. Robbery, 1^st or 2^nd Degree
• Agg. Sex Assault, 1^st Degree
• Any Deadly Weapon finding
• Arson, 1^st Degree
• Burglary of Habitation, 1^st Degree
• Capital Murder
• Compelling Prostitution
• Criminal Solicitation (1^st Degree)
• Continuous Sex Abuse of Child
• Indecency with a Child
• Injury to a Child, 1^st Degree
• Murder, 1^st or 2^nd Degree
• Robbery, 2^nd 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 (2^nd and 3^rd-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.

Welcome to the world of parole law. It is an honor to be asked to write about my practice area for the TCDLA membership. It is also a privilege to be selected to be a board member for this wonderful organization. I am passionate about my work and love my career.

For those of you who don’t know me, I spent the first 12 years of my career as a public defender in Chicago (Cook County). I started in Traffic Court and worked my way up to the Felony Trial Division. The pace was frantic and the caseloads immense; there was always ongoing litigation.

I moved to Texas in 2015 and started my law firm focusing on a statewide parole practice. In the upcoming months, I will write a series of articles on parole law. The purpose of these articles will be to give clear, concise, and easy-to-apply principles of parole law for practitioners to use daily. Some of the topics will include general parole fundamentals, the parole review process, discretionary mandatory supervision, and parole revocation hearings. 

For starters, parole law can be confusing. That is mostly because there is no central repository for parole law. Most of the “rules” pertaining to parole issues come from many different sources including: Chapter 508 of the Government Code, Texas Administrative Code, Parole Board Policies and Directives, Parole Division Parole Operating Procedures, and case law.

One of the biggest differences between parole law and criminal defense law is the focus of the work. In criminal defense work, we are generally micro-focused on the case at hand. We are looking at the offense charged, the elements of the offense, the evidence, and any potential defenses. Due to time constraints, we rarely have time to focus much on mitigation until after the case is tried. And as we all know, very few cases are tried to verdict. So, the focus is usually centered on the alleged offense, but the full backstory is usually not covered.

Parole law on the other hand is macro-focused. The instant offense is just one small part of the overall picture. In fact, during my daylong long interviews with my clients (many lasting over six hours), we may only discuss the instant offense for 30 minutes or so. We spend the rest of the time discussing their childhood, adolescence, education, family, home environment, mental health, learning disabilities, medical issues, ties to the community, family support, job skills, employment history, prior offenses, and conduct in prison, just to name a few. 

You could say that parole law is holistic in nature; it looks at the whole person and not just the instant offense. In the following article and the ones to follow, I will present the most common questions and topics clients and attorneys ask regarding corrections and parole. Parole can be quite complicated, but this article and the ones to follow should be a great start for attorneys when advising clients who may be facing prison sentences. 

Who Are the Parties Involved in Parole Decisions?

The Texas Board of Pardons and Paroles (“Parole Board”) determines who shall be released on parole. The Texas Department of Criminal Justice (“TDCJ”) has no say in the release of offenders. Contrary to popular belief, the Parole Board and TDCJ are not the same entity. You can think of it this way: TDCJ houses and monitors offenders until and unless the Parole Board tells them otherwise. The Parole Board doesn’t tell TDCJ how to run their prisons, and TDCJ doesn’t tell the Parole Board whom to release.

The Parole Board is actually comprised of seven board offices: Amarillo, Angleton, Austin, Gatesville, Huntsville, Palestine, and San Antonio. Board Offices are assigned to vote on prison units in their general geographic region. For example, the Austin Board generally votes on cases in Central Texas and the San Antonio Board generally votes on cases in South Texas. Each board office has three voters (one Board Member and two Parole Commissioners).

What may be surprising is that votes are not done as a group. The first voter on a particular case (lead voter) typically votes on a case, and then the file is turned over to the next voter. Two of three votes are needed to either grant or deny parole.¹ In a typical year, the Parole Board will vote on 80,000 cases. Last year the overall approval rate was 35 percent. There are many reasons for that number, but we will discuss that in the next article.

What Kinds of Votes Are There?

When an offender² is reviewed for parole, it is not usually a “yes” or “no” vote. The Parole Board has many options when deciding to grant or deny parole. For parole approvals, the Board can order many types of votes, which are called FI votes. Among the more common votes: immediate release (FI-1 vote), substance abuse programs FI-5, FI-6, or FI-R vote), or sex offender programs (FI-4, FI-9, & FI-18 vote). In fact last year, of the offenders granted parole, approximately two-thirds of offenders were required to complete a program in prison prior to release.

Where Will Offender Go and How Soon Until They Leave?

Offenders generally stay in county jail no longer than 45 days after sentencing. This is referred to as “catching chain.” Offenders must first go to an intake unit. The intake units for men are the Byrd, Gurney, Holliday, and Garza West Units. Women generally go to the Plane State Jail and Woodman State Jail for intake.

What Happens at Intake Units?

Once an offender arrives at the intake unit, they are generally “off the radar” for three weeks. Be prepared to tell your clients that the first three weeks of prison are often the worst. Offenders are arriving at these units from all over the state. Some are there for two-year non-violent sentences and some are there serving life sentences for violent offenses. 

There are no visits allowed during this initial time, no phone calls, and no access to commissary. During this time, offenders will be photographed, fingerprinted, and assigned a TDCJ number. All tattoos will be documented and gang membership will be questioned. Offenders will also get medical screenings (physician, dentist, and psychologist). Usually an IQ test will be given, too. There will be little to no programming available. It is during this time that offenders are given their Line Class and Custody Classification. An offender’s parole eligibility date will be calculated as well. Within 48 hours of arriving at an intake unit, an offender will appear on the TDCJ website, which shows their unit of assignment and contact information.

Offenders can stay at an intake unit or state jail unit for the first two years of their sentence. This is generally frowned upon by offenders because these units generally have fewer options for work assignments, programs, and classes.

Good Time Credit and Custody Classification

Each offender is given a Line Class and Custody Classification. Line Class corresponds to Time Earning Status.³ For example, most offenders arrive at TDCJ as Line Class 1. With good behavior, they can be promoted to various Trustee Levels (SAT II-IV). If they misbehave, they will be reduced to Line Class 2 or 3.

Good Time Credit

Offenders entering TDCJ as a Line Class 1 will receive 20 days Good Time for each month served. Once assigned a job, offenders in Line Class 1 will receive and extra 15 days of Good Time on top of the 20 for each month in prison. If promoted to trustee, Good Time will increase up to a maximum of 45 days per month. Please note that Good Time is not awarded to offenders serving time for a 3G offense.⁴

Custody Classification

Each offender is also assigned a Custody Classification, which is also referred to as G Levels (G1-G5). This determines where an offender can live, how much supervision they will need, and what jobs they can be assigned. The factors used in determining Custody Classification are current and previous institutional behavior, current offense, and sentence length.

On the high end, G1 classification allows offenders the most freedom, and they are generally assigned to Trustee dorms with unarmed supervision. On the low end, G-5 custody classification is relegated to those offenders who are escape risks or have a history of assaultive behavior. Administrative (“Ad”) Segregation is actually the lowest custody classification. Those offenders are usually in single cells for 23 hours a day.

What About Credit for Time Spent in County Jail?

Offenders who are sentenced for non-3G offenses receive 20 days Good Time for each month in custody.⁵ Therefore, a client who spent one year in county jail before sentencing will receive eight months Good Time credit upon arriving at TDCJ.

What Kind of Job Will My Client Get?

Contrary to popular belief, TDCJ has many jobs and vocational classes for offenders to participate in. Everyone in TDCJ is assigned a job, everyone goes to work. For those offenders who are in ill-health or have severe medical problems, they can be declared “medially unassigned.” During intake, offenders should talk about their work experience, job skills, and certifications. Many offenders are assigned to field squad, laundry, or garment factory. In my experience, offenders who have marketable skills such as welders, electricians, and plumbers usually get the best assignments. For those who wish to learn new skills, TDCJ offers some unique training programs. I have had clients who trained security dogs used on manhunts and others who trained service dogs. I even had a client who obtained his CDL in prison and spent his time driving a truck back and forth between prison units. Once again, the availability of these jobs is dependent on the particular unit, their custody classification, and of course luck.

What Kind of Programs Are Available?

TDCJ offers a wide variety of programs for inmates. This is unit-specific, many units offer more programs than others. Many clients find that classes help them pass the time, learn something new, or just be there as a support system for other offenders. Some popular programs include: Quest for Authentic Manhood, Bridges to Life, Cognitive Intervention, and Voyager. Many of these programs are run in coordination with faith-based or community-based organizations. A few units offer college courses as well. Keep in mind that the most popular programs often have long waiting lists and entry is not guaranteed.

What Can I Do to Help My Client?

The single most important thing an attorney can do for a client who is going to prison is to SAVE THE CLIENT’S FILE. That means keeping the file, either paper form or scanned into your hard drive. This does not only include the discovery but also investigator reports, plea offers, and trial notes. I cannot stress enough how important that is. 

After being granted permission by the client, I always call the client’s prior attorney to discuss the case. You would be surprised how much information can be learned about the case from talking to the prior attorney.  For example, it is common for a deadly weapon finding to be removed in the plea process. However, if that deadly weapon finding were removed because the investigation revealed that no weapon actually existed, this can be a very helpful piece of information. Moreover, affirmative defenses raised at trial, even if not successful, can be mitigating factors when presenting cases to the Parole Board.

In the next article, I will discuss the parole process in more depth. Topics will include factors used in the parole voting process, Discretionary Mandatory Supervision, set-offs, ex post facto issues, and parole in absentia.