James Randall Smith
Attorney at Law 1201 South Shepherd Houston, TX 77019
Telephone 713/630-0500	Web Page www.texasparole.com	Facsimile 713/630-0553

April 23, 2007

Thank you for writing to me. This letter is written in an effort to continue to keep inmates updated on the current issues regarding parole and parole related matters, as well as to address some of the repetitive questions asked in the letters I receive from the inmate population. I have totally redesigned my web page and it now contains statistical release rates for over three years, parole board members’ statistical release rates, legal opinions affecting the inmate population, definitions of abbreviations used in parole minute sheets and denials, past and present proposed legislation affecting the inmate population, information on time cuts, and information on various rumors and whether these rumors have any basis in reality. There is much more information available at this website. I do realize the inmate population cannot access this information, I hope, your family or loved ones have access to computers and can copy this information and send it to you. The cost of mailing this information would be prohibitive.

TIME CALCULATIONS FOR FIRST PAROLE REVIEW:

The following information is based on laws currently in effect. Parole and mandatory supervision eligibility is determined by the laws in effect at the time the offense is committed. The following is a parole and discretionary mandatory supervision eligibility chart, remember the parole board presently is placing inmates into parole review six months in advance of these calculated times and the parole board is presently voting cases as early as three months before the calculated times, in other words you need to hire me well in advance of the computed appearance date:

3g Offenses where good time credits have no effect on an offender’s sentence:

Parole eligibility is based on calendar time. The inmates convicted of a 3g offense are not eligible for mandatory supervision. Any 3g offense committed on or after September 1, 1993 requires an inmate to serve a minimum of one-half of the total sentence to become parole eligible. The following is the current listing of 3g offenses:

Aggravated Sexual Assault

Aggravated Kidnapping

Aggravated Robbery

Indecency with Child-Contact

Murder

Sexual Assault of a Child

Offenses with Affirmative Finding of Deadly Weapon

There are certain offenses where a life sentence carries unique initial parole eligible requirements by statute:

Capital Murder                                                                             40 years actual time served

Aggravated Sexual Assault                                                         35 years actual time served

(two prior convictions 1 sex related)

Aggravated kidnapping with Intent to Abuse Sexually                 35 years actual time served

(two prior felony convictions 1sex related)

Indecency with Child-Contact                                                      35 years actual time served

(two prior felony convictions 1 sex related)

Burglary Habitation with intent to                                                 35 years actual time served

sexual assault or indecency with Child

(two prior felony convictions 1 sex related) 

Aside from the above listed offenses, good time credits for offenses listed below and as defined in 508.49 of the Texas Government Code count toward an inmate’s parole eligibility. The good time credit does not count, however, toward release on mandatory supervision. If the inmate is never approved for parole, the inmate convicted of the following will serve the entire sentence:

Aggravated Assault 1^st and 2^nd degree          *Drug-Free Zone Offenses                             Robbery

Arson 1^st degree                                             Indecency with Child-Exposure                      Sexual Assault

Burglary Habitation 1^st degree                        Injury to Child, Elderly, Disabled 1^st degree

Use of Child in Offense

*Drug-free zone offenses carry a unique parole eligibility requirement. If convicted of such a crime, an offender must serve five calendar years to become eligible. Consequently, if an offender is sentenced to five-years or less, he or she is not eligible for parole or mandatory supervision.

The GROSS AND SIRACK INMATE LAWSUITS:

I receive numerous letters every month requesting information on these two pending legal matters. As of today’s date, neither one of these cases have gone to trial. When these cases go to trial whoever loses at the trial level will appeal the case to the Fifth Circuit Court of Appeals. This is the intermediate appellate court over any federal cases arriving out of Texas and other states. There will have to be briefs submitted, legal opinions argued and a decision reached by the Fifth Circuit Court of Appeals. Whichever side loses at this level will almost certainly appeal to the United States Supreme Court. Again briefs will have to be prepared and submitted and an oral argument, if the case is granted cert., submitted to the nine justices and then a final decision will be rendered. I anticipate this entire process will take approximately 3 to 5 years from the date of the trial. Presently there is nothing I can report on other than legal maneuvers by both sides. Similar arguments were raised in the 1990's in a case entitled Johnson V. Rodriguez. The Inmate won at the Federal District Court Level, but the Fifth Circuit reversed ruling the Texas Parole Statue affords no due process and thus the inmates have no basis to claim a constitutional violation.

LEGAL OPINIONS:

The Fifth Circuit issued an opinion in Teague v. Quaterman (5th Cir. 3/2/07). This case holds where an inmate’s sentence is subject to either mandatory supervision or discretionary mandatory supervision, if the inmate suffers the loss of any time credited as a result of disciplinary actions, such loss is a valid liberty interest issue, and is not de-minimus in nature therefore a writ to challenge any claim of defect in the constitutionality of the disciplinary process can be filed directly in federal court. This will allow the inmate to get around the decision in Ex Parte Brager,704 S.W.2d 46 (1986) indicating Texas courts will no longer consider such discipline actions.

ELECTRONIC FILES:

In my previous letter to the inmates, I indicated the parole board is presently in the process of converting to electronic files. The parole board selected a begin date of January 2007 for those inmates who have never had a parole appearance before the parole board and those inmates files will be electronically submitted to the parole board. All other inmates who have previously had parole board appearances will continue to have their files physically sent to the parole board. Because there are two separate methods for the parole board to receive inmates files, one being the actual physical file itself, and as of January 1, 2007 an electronic file which will be reviewed on the parole board’s computer, the process by which the parole board receives these files has been extremely disorganized. Files are being received by the parole board in a haphazard manner and the parole board is attempting to review these files as best they can. My office is endeavoring to make sure all of our clients’ files are received on time and they are properly reviewed by the parole board whether they are the old physical files or the new electronic files.

RUMORS:

There is presently a new rumor circulating that the Legislature is changing the law affecting 3g offenders. The present law requires the inmate serve one-half actual time before he/she is eligible for parole if he/she is convicted of a 3g offense. Supposedly, according to the rumor, the Legislature has passed a law requiring the parole board to compute the inmates work time when calculating when the inmate has reached one-half of his sentence. FALSE. There is no such legislation proposed to date. I have reviewed all of the bills pending before the Criminal Justice Committee, which is the committee all criminal laws must go through before they are approved for a floor vote, and there is no such law proposed or filed by any legislator.

LEGISLATIVE NEWS:

I’m not addressing proposed legislation in this letter as I did in my previous letters. I’m afraid most people did not understand the distinction between proposed and actual law. Unless a bill comes out of the committee, receives a majority vote from both the House and the Senate, is sent to the Governor’s desk, and the Governor signs the bill, the bill does not become law and does not affect anyone. I will be addressing any new changes in the laws affecting the inmate population in my September 2007 mail out .

***MY ATTORNEY REPRESENTATION & WHY I MUST BE HIRED A LONG TIME BEFORE THE ELIGIBILITY DATE:***

Every inmate is eventually going to be reviewed by the Board. If you want to hire me I must have time to perform my job. I must be hired a long time before the inmate’s eligibility date so I can do what needs to be done such as help prepare an inmate to be a good candidate for release to parole, gather the needed information and prepare the written documentation to be submitted to the Board, and to argue in behalf of my client before the Board if granted an appearance.

All inmates will receive a parole eligibility date. About six (6) months before that eligibility date, the inmate’s file for TDCJ-ID goes into review status. Review Status means that the TDCJ-ID file will begin traveling through their different offices to be prepared for the parole board members before it is sent to them. When an inmate’s file goes into review status it is pulled out of the regular file cabinet in Austin and it begins to travel to the different offices for the many things that have to be done. The review status should be completed about 2 to 3 months before it is sent to the parole board office. Once the parole board receives the file, the file is then assigned to a first voting board member and then it is voted on. There is no exact formula for calculating when the review process will be complete or when the file will be sent to and voted on by the board members which is why I begin tracking my client’s files about 6 months before the eligibility date to make sure where they are. This is why I must be hired a long time before the inmate’s file goes into review status and a long time before the eligibility date.

The following is only an example of the time frame that it would take for a file to go through the system:

EXAMPLE:

Eligibility Date                  File In Review Status                      Probable Voting Period

January 1, 2008                August 1, 2007                                November 1, 2007 - January 1, 2008

The above example shows that the inmate’s file had an eligibility date of January 1, 2008. Six months before that eligibility date, August 1, 2007, it is placed in review status. Around November 1, 2007, it is then sent to the board members to be voted on and the vote should be completed before January 1, 2008.

It is too late for me to do my job if you wait to hire me once the file goes into review status.

TIME PAYMENT PLAN: If you decide to hire me and do so well in advance of your eligibility date, I can design a time payment plan for your family or loved ones, but I must be paid in full before I submit the parole package or request an appearance before the Parole Board, which is normally submitted 4 months prior to the parole review date. The time payment plan has been very helpful to many of my clients who have limited financial resources and thereby allowed them to hire me without causing them financial distress because they have hired me many months or even years in advance. If you wait until the last minute, the entire fee is going to be due immediately.

Please do not send any of your documentation to me prior to retaining me.

Sincerely,

James Randall Smith

Attorney at Law

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James Randall Smith