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Click here for the full text of this decision FACTS:On Jan. 31, 1986, the applicant for writ of habeas corpus committed the offense of aggravated assault on a peace officer. He was later convicted of that offense and placed on probation. On Dec. 31, 1988, applicant committed the offense of theft from a person. He was convicted but placed on probation for that offense as well. On Feb. 8, 1990, his probations in both cases were revoked, and he was sentenced to seven years on the aggravated assault case and to eight years on the theft case, to be served consecutively. Due to the accumulation of pretrial time credits, applicant’s start date for Texas Department of Criminal Justice calculation purposes was Feb. 20, 1989. The applicant was released to mandatory supervision on Feb. 23, 2000. A pre-revocation warrant was issued on May 12, 2002, and applicant’s mandatory supervision was subsequently revoked. At the time the warrant issued, applicant had spent 810 days on mandatory supervision, and he had 650 days remaining on his sentence, with a discharge date of Feb. 20, 2004. Upon revocation, applicant was not awarded credit for time spent on release. As a result, his discharge date moved to May 13, 2006. In his application for writ of habeas corpus, the applicant complains that he should have received credit under Texas Government Code 508.283 for time spent on release. The state contends, however, that the applicant is a person “described by Texas Government Code 508.149(a)” and so the benefits of 508.283 do not apply to him. HOLDING:Granted. Section 508.283 grants credit for time served while on release if, at the time the warrant initiating the revocation process issues, a prisoner has spent more time on release than he has left to serve and he is not a person “described by 508.149(a).” Included in the list of offenses found in 508.149(a) is “a first degree felony or a second degree felony under Section 22.02, Penal Code.” Since 1973, 22.02 has prohibited an offense entitled “aggravated assault.” The offense of “aggravated assault on a peace officer,” for which the applicant was convicted, was codified at the time applicant committed the offense as an “aggravated assault” offense under 22.02. But in 1986, aggravated assault on a peace officer was a third degree felony unless a deadly weapon was used. The court notes that applicant’s indictment did not allege the use of a deadly weapon, no reference to a deadly weapon appears in the judgment, and the sentence of seven years is consistent with a third degree felony. Consequently, although the degree of felony was not specified in the indictment or the judgment, the court concludes that applicant was in fact convicted of a third degree felony. Section 508.149(a), which refers only to first and second degree felony offenses committed under 22.02, does not expressly include applicant’s offense. In Ex Parte Ervin, 2005 Tex. Crim. App. LEXIS 518 (April 6, 2005), the court decided that statutory precursors of the offenses listed in 508.149(a) are considered to be included for the purpose of determining whether an inmate is ineligible for mandatory supervision. Assuming arguendo that Ervin’s holding regarding mandatory-supervision eligibility extends, via 508.283′s reference to 508.149(a), to street-time eligibility, that holding has no applicability in this case because applicant’s “aggravated assault” offense is not a statutory precursor to any offense contained in 22.02 (and therefore excluded by 508.283) at the time of his revocation, the court finds. The aggravated assault statute in effect at the time of applicant’s revocation did include a subsection referencing “public servants” with language that is otherwise similar to divisions (A) and (B) under the 1986 version of the statute and making an offense committed under that section a first degree felony. But the first degree felony offense found in the 2002 version of the statute contains additional elements not present in the third degree felony offense found in the 1986 version. Under the 2002 version of the statute, aggravated assault against a public servant requires a showing, along with all other aggravated assaults, of either serious bodily injury or the use or exhibition of a deadly weapon. Neither of these elements was required by the third degree felony found in the 1986 version of the statute, and in fact, the 1986 statute contained the element of “bodily injury,” a lesser element than “serious bodily injury.” The statutory successor to the 1986 offense is actually found in the 2002 version of Texas Penal Code 22.01, the simple assault statute, the court finds. The 2002 version of 22.01 proscribed conduct that inflicted “bodily injury” and provided for an enhanced penalty (third degree felony) when such conduct was directed against “public servants.” Section 22.01 is not listed in the 2002 version of 508.149(a). Since applicant’s 1986 offense was a statutory precursor to the 2002 version of 22.01 instead of 22.02, it does not come within the rule announced in Ervin. Applicant’s “aggravated assault on a peace officer” offense is not an offense described by 508.149(a). Consequently, he is eligible for the 508.283 time credit, the court concludes. OPINION:Keller, P.J., delivered the opinion of the unanimous court.

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