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To APWA Hamilton 198 College Hill Road Clinton, NY 13323 P.S. Please send me a photo copy "back" for my records June 25, 2018 From Tommy Boone McConnell Unit 3001 S. Emily Drive Beeville, Texas (USA) 78102 This essay is about statutory law, and the judicial interpretation of it by the Texas Court of Criminal Appeals. The law is incorrectly interpreted and not by virtue of error but of plain ole MEANNESS or, well, who really knows why the judges do these things. I have looked deep thinking it possible they are fighting some spiritual battle that has been going on since the beginning of time and it becomes too confusing and causes me to second-guess so much about life outside the immediate matter that I have pretty much sought to discard supernatural possibilities and remain strictly focused to the correctness of interpretations of law. Period In Texas the legislature has enacted a special sentencing scheme in Article 42.08, Texas Code of Criminal Procedure (hereafter V.A.C.C.P for "V"ernon's "A"nnotated Tx. "C"ode of "C"riminal "P"rocedure). There are two sections of Article 42.08, V.A.C.C.P.; Art.42.08(a) is a section I personally know not much about as I have never been assessed sentences of punishment under it, but rather its Article 42.08(b) VACCP, that I have become involved with, this particular section is meant to take the discretion out of the district court judge's hand and make the sentencing measure mandatory if the person was already in a Texas prison at time of commission of an offense. The statutory language is essentially as follows: Article 42.08(b), VACCP, Cumulative Sentences: ""If" a defendant is sentenced for an offense while serving a sentence already in the Texas Department of Criminal Justice - Institutional Division, "and" the sentence the defendant was already serving has not been completed, the district court shall order on the judgment and sentence for the subsequent offense that it "shall" commence to operate immediately upon the completion of the sentence the defendant has been serving on the "original" offense." This is not the exact words but it is the essentials and will suffice for this essay. Now lets look at the case by the Texas Court of Criminal Appeals whereby the court is misrepresenting the law and its true mechanics and applicability, according to legislative intent. In Ex Parte "Kuester", 21 S.W.3d 264, at "271" the court has "correctly" held that this key language in like-natured terminologies employed in Article 42.08"(a)" and Art.42.08"(b)" e.g. "Cease to Operate" and "Completed", respectively, both mean the "same" thing! I believe this is true that both terminologies [mean] the same thing! I do "not" believe that it was correctly interpreted in the first instance to "mean" that the "date" that a sentence ceased to operate was the date the person was provided in the "designate" (Date by a panel of the parole board) whereby a panel cast a discretionary "vote" approving one for release on parole. No, sir, this is not just error, but is so obviously wrong as to be a personal wrong done in maliciousness and bad faith! Its not a simple misconstruction but more appropriately characterized as deliberate misrepresentation. The Ex Parte Kuester Court 21 S.W.3d 264, at "270", proposes: "Thus the person would be actually released on parole but for the second sentence..." and then again on same page "270" the person would be actually released on parole "but for the second "consecutive" sentence." However, this is incorrect! There is no second sentence [at all] of any kind, "concurrent" or "consecutive" to preclude actual release to parole [if] this the proper date sought by the legislature pertinent to sections (a) and (b) of Section 508.150, of Texas Government Code. While 508.150(b)(B)(*FN #1), Government Code, seeks that a panel provide a designate date indicative of [when] the person would be [eligible] for release on parole [if] they had been sentenced to a "single" offense "one" sentence. The "Kuester" Court pretends the legislature wants "more" than the persons initial parole eligibility period statutorily by having commanded the date be provided by a parole [panel]. Under Section 508.145(f) of the Texas code of Criminal Procedure this provision is presented in the same character of "English", e.g. [when] any prisoner is initially eligible for parole suitability reviews its due to the fact they have "acquired" enough actual time served that when "totaled" with any good conduct time credit awards, equals the statutory one-fourth 1/4th part of actual sentence imposed... the statutory eligibility period [generally] for example [if] they were sentenced to a single sentence of punishment. *Footnote 1.) 508.150(b)(B) is how the "Kuester" court uses it, but it is also 508.150(b)(2), Texas Govn't Code. Okay, while you're really "only" [eligible] for parole - the periodic suitability reviews by a parole panel just might work out - you could be "actually" approved for [release] to parole. Your mere eligibility for release is thus characterized by legislative terminology within section 508.145"(f)", Texas Government Code, as one who is "eligible for release on parole" as opposed to "eligible" for mere periodic suitability reviews for release. The eligibility of Sec.508.150 "(a)" and (b)"(B)", seek, yet the Ex Parte "Kuester" Court, 21 S.W. 3d 264 deliberately pretends the legislature seeks [more] because of its use of the term parole [panel]. It seems the Court places so much stock in such perspective [because] it would have been too easy for the legislature to simply have said they were "speaking" about the initial parole suitability period, statutorily! Instead of having commanded this designated date to be provided by a [panel]. But crazy as this sounds, the legislature did point to the statutory [initial parole eligibility period]; in section 508.150(b)"(B)", Government Code, they "employ" a pretension, a supposition, perhaps hypothetical?, to the effect they command us that the date the panel must "designate" is essentially one where with the person sentenced to consecutive sentences under Article 42.08, VACCP, is [eligible] for parole "generally", since generally one with stacked or "consecutive" sentences is not generally eligible at all! To this extent 508.150(b)"(B)" makes one "generally" eligible despite the consequence they contrariwise have consecutive sentences imposed against them. This makes one wonder at the "logic" of the Ex Party "Kuester" Court, if not its honesty and sincerity! The reason the Kuester Court proffers in the matter, "likewise" - why would the legislature command the [panel] to designate the initial statutory eligibility period "since" such dates are "SET BY LAW", everybody has this date, the same, set by law! Statutorily at a one-fourth [part] period of the actual sentence imposed by a court. "Why" should a [panel] even be needed then? Well, while the initial parole eligibility period is set by law, it is seldom [if ever] really a static period where inmates are concerned because of the network of mechanical items that affect the inmates daily lives once they reach the prison system. While there is a host of differing good time earning classification statuses, one inmate might for years earn a different amount of time awards than another does! Then, the prison disciplinary operations so often place one in disciplinary statuses which earn little, or conversely no good conduct time awards for designate periods of time, or has their accrued good conduct time awards "forfeited", altogether taken away - lost completely! These items consequently "act" on what's otherwise a "static" period of parole eligibility set by law! While the court understands all this [still] in these feigned and collusive "opinions" they write they pretend to be "unaware". The opinions are "primarily" intended (I suppose) to misrepresent facts and circumstances for the general public and [inmate] Pro Se litigants who can't really see into the feigned and collusive nature of the judicial opinion writing these jurist are able to produce! And so, there is a real necessity for the legislature requirement of having the date provided by a parole panel! See Section 508.150(b)(B). The type of eligibility we see in the actual parole panel "vote" approving one for release on parole is more than "mere" eligibility. It's actually "mischaracterized" as eligibility, it is more an actual "entitlement" in full; such a date is not merely representative of ones "eligibility" for release (in the primary sense) but is an "entitlement" to release - complete! In this light, the "Kuester" Court proposes, thus, the government code "seeks" a "hypothetical parole release date". And, as such, "the person would actually be pleased to parole but for the "second" consecutive sentence." Ex Party Kuester, 21 S.W. 3d 264, at "270". But there is no "second" consecutive sentence to be considered! Sec. 508.150(b)"(B)" has clearly commanded us that the pretentious supposition we must employ here to acquire such a date, is "one" whereby the person [has been sentenced but to a "single" sentence]. period Now lets look back to the statutory language of article 42.08(b) VACCP, itself; see ante (above) at page #3, the statue at issue! This statue does not represent a person with a second sentence of any kind at all! Its pretextual altogether... banking on a number of [if]s and [and]s. Most noteworthy of all is it obviously commands an importantly critical determination be made initially whether person is even subject to consecutive sentences under the scheme, by calling into "question" matter whether whether person has yet "completed" sentence already being served. The mere question [itself] implies possibility person has "already" "completed" sentence being served on [original] offense! For example, on "single" (one) sentence being "served" at time of subsequent offense. Before any sentencing at all might be done, the matter whether one serving single sentence at time of new (subsequent) offense, has yet "completed" such sentence must be "determined" by a court. While statute implicitly proposes it is possible [original] single sentence has already been "completed" and thus person would not be subject to special sentencing scheme, e.g. sentence imposed would begin to operate and run immediately, concurrent with the sentence being served, because prison is not release on parole, but still in prison and answerable to the new criminal offense. This is thus indicative of what's known as a raising of negative implications, the "Kuesters" Courts proposal is in error and cannot possible work! Under both 508.150(b)(B) Gov. Code, and Art. 42.08(b), VACCP, there is no second sentence to consider which could act to preclude actual release to parole if the legislature really sought actual parole approval date as opposed to mere eligibility date. Tommy Boone
