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Click here for the full text of this decision FACTS: The applicant was convicted of possession of a weapon in a prohibited place in March 1998 and sentenced to eight years in prison. He was eligible for release on discretionary mandatory supervision on April 19, 2001. On Dec. 20, 2000, a parole panel prospectively denied him release on mandatory supervision. Applicant claims that he was not sent notice that the parole board would be considering whether to release him at that time. The same thing happened in 2001. He was told that the parole panel would review him for release in December, 2001, but the parole board then voted to deny his mandatory supervision release on November 13, 2001- two weeks before the earliest date he was scheduled to be reviewed. The applicant filed a writ of habeas corpus, alleging that he had been deprived of due process because the parole panel reviewed his case before the month scheduled. On Aug. 21, 2002, this court agreed with applicant and granted him another hearing with sufficient advance notice of its timing so that he would have an opportunity to submit relevant information to the board before it made a decision. Ten months later applicant filed another writ complaining that “the board pulled the same stunt as before.” This time, it informed applicant on March 7, 2002, that it would review him for release on mandatory supervision at some unspecified future date, but that he should submit any additional written materials that he would like the board to review “as soon as possible.” That unspecified date turned out to be some ten months later, on Jan. 16, 2003, but applicant was not informed of that date until he received a denial letter afterwards. The applicant claims that he “was denied a meaningful opportunity to be heard when the Parole Board conducted a hearing in [his] case on a date for which [he] had not been given notice.” He argues that the “ambiguous, vague” notice that he had received on March 7, 2002, was “was just as defective” as the notice he had received in 2001, and that the board therefore violated his right to due process under the Fifth and 14th Amendments. HOLDING: Granted. In 1995, the Texas Legislature amended the mandatory supervision statute to permit a parole panel to exercise some discretion in deciding whether a person who was eligible for release on mandatory supervision should, nonetheless, be kept in custody. Under the revised Government Code section, “[a]n inmate may not be released to mandatory supervision if a parole panel determines that: 1. the inmate’s accrued good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation; and 2. the inmate’s release would endanger the public.” This statute is a “failsafe” mechanism to protect society from the inappropriate release of those who are not truly rehabilitated and who would constitute a present danger to the public. Under the current provision, an inmate who is eligible for release on mandatory supervision will be released unless the parole panel makes these two specific findings. Given the wording of the statute, an eligible inmate has a vested, statutory entitlement to release on mandatory supervision, but it is a defeasible interest one that may be defeated, but only if the parole panel makes these findings in its review. Given an inmate’s vested liberty interest set out in the mandatory supervision statute, the court concludes that written notice that an inmate will be reviewed at some unspecified time in the future, coupled with a request that he submit relevant materials “as soon as possible,” is constitutionally deficient notice. It fails to specify any relevant time frame, and it is so vague that it poses an unacceptable risk of adversely affecting an inmate. With this type of notice, an inmate could be reviewed the day after the notice was sent and therefore his materials could not be submitted in time, or he could be reviewed in 10 to 12 months, in which case his materials may be entirely out-of-date. This notice is, from a constitutional due process standpoint, the same as no notice at all. Following the U.S. Supreme Court’s reasoning in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 99 S.Ct. 2100 (1979), the court holds that an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. The court also holds that he must be given at least 30 days advance notice that he will be reviewed in the specified month so that he has a sufficient opportunity to submit materials on his behalf. Given the repeated failures to provide adequate and timely notice to this applicant, the court concludes that applicant is entitled to the specific habeas corpus relief that he has requested a new review “as soon as possible.” Because the mandatory supervision statute requires release unless the parole panel makes specific findings, the court finds that applicant’s continued incarceration is illegal and unconstitutional unless, within 60 days, the parole panel has given him timely notice of a review to be held before the fifty-ninth day and has provided him at least 30 days to submit whatever explanatory material he wishes the panel to consider. Under the statute, the onus is on the parole panel to invoke the review process and make its findings, not on the eligible inmate to request a review. Without the two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, a parole panel must release an eligible inmate to mandatory supervision. OPINION: Cochran, J.,; Price, Womack, Johnson and Holcomb, JJ., join. Hervey, J., filed a dissenting opinion in which Keasler, J., joins. Keller, P.J., dissented. DISSENT: Hervey, J.; Keasler, J., joins. “The Court has apparently decided that it will provide the extreme remedy of applicant’s early release from prison (even though the Parole Board has determined that this would endanger the public) if the Board does not meet the Court’s extra-statutory and arbitrary deadline for reviewing applicant for mandatory supervision release after “timely notice” to applicant. All of this ignores the ultimate due process question and has the very real potential of putting the security of the public at risk. I must, therefore, respectfully dissent to this particular exercise of the judicial power.”

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