On February 4, 2009, the Texas Court of Criminal Appeals held that a state prisoner who had been erroneously released through no fault of his own, and who had not violated any of the conditions of his release, was entitled to credit against his sentence for the time he spent on the street.
Kevin Rowe, a Texas prisoner, was convicted of possession of a controlled substance in San Antonio and sen-tenced to three years in the Texas Department of Criminal Justice (TDCJ). Before being transferred to the TDCJ he was extradited to Georgia, where he was released on probation. Shortly thereafter he transferred his probation to San Antonio, Texas.
Rowe told his probation officer that he should be serving a TDCJ sentence. The probation officer checked for out-standing warrants and, finding none, did nothing. Three months later, a TDCJ parole officer called the probation officer and informed him that Rowe should be in prison and that she would contact him to tell him when Rowe should surren-der himself. The parole officer never called back, but a premature-release warrant was issued for Rowe several days later. Rowe was arrested on the warrant when he tried to renew his driver’s license, which was more than two years after he had been sentenced on the controlled substance charge.
The TDCJ refused to give Rowe any credit for the time he spent on release. He filed a state petition for writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure. The state responded that, in light of Ex parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003), Rowe was not entitled to credit for time on the street while he was erroneously released. On appeal, the Court of Criminal Appeals held that the state had misinterpreted its prior ruling in Hale.
Hale had been erroneously released on mandatory supervision, then violated the conditions of his release. The Court of Criminal Appeals ruled in that case that Hale was subject to § 508.283 of the Texas Government Code, which required loss of credit for time spent on the street when parole or mandatory supervision was revoked.
Rowe, however, was arrested on a premature-release warrant, not revoked for violating conditions of his release. “In fact, [Rowe] has far exceeded any requirements that this Court has placed on those who were erroneously released from custody. It would be unreasonable to require those released from custody to inform the authorities that they should in fact be detained. Yet, in this case, Applicant informed the Texas probation officer who administered his Georgia probation that he had an outstanding conviction and should be in the custody of TDCJ,” the Court wrote.
The TDCJ knew where Rowe was yet failed to arrest him. Thus, he should not be punished for obeying the conditions of his supervised release – rules that would have been in place had he been properly released. Accordingly, the Court of Criminal Appeals ordered the TDCJ to credit Rowe with all of the time he spent on the street since he was sentenced, plus any pre-sentence credit to which he was entitled. Rowe was represented by San Antonio attorney Kevin L. Collins. See: Ex parte Rowe, 277 S.W.3d 18 (Tex.Crim.App. 2009).
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Related legal case
Ex parte Rowe
|Cite||277 S.W.3d 18 (Tex.Crim.App. 2009)|
|Level||State Court of Appeals|