On June 9, 2004 the Texas Court of Criminal Appeals handed down another significant decision dealing with the application of parole statutes.  see Ex Parte Andrew Michael Mabry, No. 74, 864.

In Mabry the Court held that at the time of the commission of his offense (Burglary of a Habitation) that Mabry was eligible for release to Mandatory Supervision.  The background of this case is important in order to understand the significance of this holding.

Mabry was convicted of Burglary of a Habitation occurring in 1990.  At the time of the commission of his offense all burglaries of habitations were first degree felonies.  However, only burglaries of a habitation involving a deadly weapon or injury were exempt from release to Mandatory Supervision.

The current Penal Code defines burglary as a first degree only if the premises were a habitation AND a deadly weapon was involved or injury.  The Government Code states that first degree Burglary offenses are exempt from the operation of the mandatory supervision statutes. TDCJ in their typically heavy handed manner has been treating all first degree burglaries as being exempt from release to Mandatory Supervision.

The Court held that because Mabry's offense was burglary of a habitation with the intent to commit theft without any allegations that a deadly weapon was used or that injury occurred that Mabry was eligible for release to mandatory supervision.

The Court noted that the changes in the legislation that became effective in September of 1996 were prospective only.  They applied only to offenses committed after the effective date of the amendments.

When viewed historically this case presents one more in a lengthening chain of cases where our very conservative Court of Criminal Appeals is holding both TDCJ and the Parole Board to a strict construction of penal statutes.  In my mind this is a significant break with the past where the Court glossed over these very same kind of issues.  The very fact that offenders are starting to see some reasoned and reasonable decisions in this area is heartening.

Stay tuned.

Gary J. Cohen
The Cohen Law Firm
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