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Click here for the full text of this decision FACTS:The applicant in this habeas corpus case is currently serving a four-year sentence for a second-degree-felony burglary committed on Oct. 10, 2002. The applicant alleges that the Texas Department of Criminal Justice, Correctional Institutions Division, is wrongly denying him consideration for release on mandatory supervision under Texas Government Code �508.149 on this present or holding offense due to his prior conviction for first-degree-felony burglary. TDCJ-CID states that applicant is “not eligible for mandatory supervision due to prior conviction of 1st Degree Burglary of a Habitation under Cause #18,704 as set out in [�508.149(a)].” The trial court agreed with TDCJ-CID’s position. HOLDING:Granted. The statute in effect when the holding offense is committed determines an inmate’s eligibility for release on mandatory supervision or parole. When the applicant committed his holding offense on Oct. 10, 2002, �508.149(a) was in effect and applicable to him. An inmate “may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of” an offense enumerated in �508.149(a). The applicant’s holding conviction for burglary is not included in the list of offenses enumerated in �508.149(a). However, first-degree burglary, applicant’s prior conviction, is on that list. The question presented here, left unanswered by this court in Ex Parte Mabry,137 S.W.3d 58 (Tex. Crim. App. 2004), is whether applicant’s prior 1987 conviction for burglary in the first degree is an offense enumerated in �508.149(a). The first-degree-felony offense of burglary is included in the list of enumerated offenses provided in �508.149(a)(13). The Legislature has, over time, demonstrated an interest in making inmates who have committed serious crimes in the past ineligible for mandatory supervision release. These “[l]egislative changes were intended . . . to prevent those previously convicted of crimes ineligible for mandatory supervision from eligibility for any future conviction, regardless of the current offense.” Ex Parte Ervin, ___ S.W.3d ___ (Tex. Crim. App. 2005). This court held in Ervin that the Legislature could not have reasonably intended to make inmates convicted under the predecessor statute to the present sexual assault law eligible for mandatory supervision release, while making ineligible those convicted of the same conduct under the current statutory title. Eligibility for release on mandatory supervision should be determined by the “essential characteristics” of the crime, not its statutory title. The court held that the �508.149(a) list includes the predecessors to the enumerated statutory offenses that currently make an inmate ineligible for mandatory supervision release. The court looked beyond the title of the prior conviction to the criminal conduct itself and held that, although the explicitly titled offense of “sexual abuse of a child” was not on the current �508.149(a) list, the criminal conduct of sexually abusing a child was. Thus, Ervin was ineligible for release on mandatory supervision because the criminal conduct of “sexual abuse of a child” is on the list of offenses which render an inmate ineligible for release on mandatory supervision. This holding implemented the legislative intent to prohibit those who have been previously convicted of offenses consisting of criminal conduct which makes them ineligible for release on mandatory supervision from eligibility for any subsequent felony crime. “We must do the same thing in this case, but in reverse. As in Ervin, the court looks to whether the essential characteristics (the criminal conduct, mental state and accompanying circumstances) of the previous conviction, not the mere title, are on the current list. Whether that criminal conduct is on the list determines whether the offense is one that renders an inmate ineligible for release on mandatory supervision under �508.149(a). Although the titled offense of “first degree felony burglary” is on the �508.149(a) list, the criminal conduct of burglary of a habitation with the intent to commit theft is not. Therefore, under Ervin, applicant is eligible for mandatory release on his holding offense.” OPINION:Cochran, J., delivered the opinion of the court in which Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Keller, P.J., filed a concurring opinion. Meyers, J., did not participate. CONCURRENCE:Sharon Keller, P.J. “[T]he Legislature has specifically prescribed how to treat one statute’s reference to another statute. The referencing statute is essentially “updated” by any changes to the referenced statute. Deciding which version of a referenced statute applies is a simple matter of determining which version of the referencing statute applies. “Here, the 2002 version of the referencing statute (�508.149(a)) applies because applicant committed his holding offense in 2002. So the 2002 version of the referenced statute (Penal Code �30.02) is the applicable statute. In 2002, burglary of a habitation with intent to commit theft was not a first degree felony; rather, it was a second degree felony. Consequently, applicant’s offense is not on the list of ineligible offenses, and he is entitled to relief.”

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