NO. 07-98-0126-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL D AUGUST 5, 1998

______________________________ TED LEWIS DUNN, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY; NO. 0601684A; HONORABLE EVERETT YOUNG, JUDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Appellant brings this a ppeal challenging the trial court's denial of credit for time served in its judgment revoking his probation. Appellant presents five issues for review. By his first issue, appellant contends the trial cour t ab used its discretion in not giving him credit for time served. Issues two2

andthree address a violation of appellant's State and Federal due process rights and issues four and five raise a violation of appellant's State and Federal equal protection rights. Because the State concedes t hat the trial court abused its discretion in denying appellan t w ith credit for time served, we reform the judgment, but in all oth er res pects affirm the judgment revoking probation. Upon a plea of guilty, appellant was convicted of delivery of a controlled substance on July 25, 1996. He was sentenced to 180 days in the State Jail Division of the Texas Department of Criminal Justice with a probationary term of two years. On July 18, 1997, the State filed a petition for revocation of appellant's probated sentence alleging that appellant use d a controlled substance and failedto report to the Comm uni ty and Corrections Department in April 1997, both vi olations of the conditions of his probation. Appellant was arrested on July 22, 1997, and confined to Tarrant Cou nty Jail until February 4, 1998, at which time a hea ring wa s held on the petition to revoke. Because appellant only pled true to the State's allegation that he used a controlled substance, the State presented evidence of appellant's failure to report. At the1 Repealedby Act of May 8, 1997, 75th Leg., R.S., ch. 165 §

12.22, 1997 Tex. Gen. Laws 327, 443. 3 c onc lusion of the hearing, the trial court found that appellant violatedboth conditions of his probation as set forth in the State's petition , or dered that his probation be revoked, and assessed punishment at 180 days confinement. By his first issue, appellant complains that the trial court abusedits discretion in not awarding him credit for time served fromthe time of his arrest and confinement on July 22, 1997 until February 4, 1998, the date of sentencing on the petition to revoke. We agree with appellant and the State that the trial court abused its discretion in denying appellant credit for time served. The State, however, disagrees with appellant on the number of days for which appellant should receive credit. Therefore, we will address this issue.
In Ex Par te Canada, 754 S.W.2d 660 (Tex.Cr.App. 1988), the Court held that former Article 42.18, sec tion 15(a) 1 of the Texas Code of Criminal Procedure Annotated, as it related to discretion to grant or deny credit for time served to a parolee confined pursuant to a pre-revocation warrant, violated the parolee's due2 No citizen of this State shall be deprived of life, liberty,

property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. 4 course of law under Article I, section 19 of the Texas Constitution. 2 The Court analogized the relationship between a jaileddefendant awaiting a hearing on revocation with that of a jaileddefendant's right to appeal his conviction and reasoned that the availability of discretion to decide wheth er to award credit for time served before a revocation hearing constituted a punitive policy that might “chill the parolee's decision to exer cis e his constitutional right to a pre-revocation hearing.” Canada , 754 S.W.2dat 667. Thus, the court concluded that Article 42.18, section 15(a), to the ex tent that it vested the Board of Pardons andParoles with discretion to deny credit for time served, was unconstitutional. See Ex Parte Price, 9 22 S.W .2d 957, 958 (Tex.Cr.App. 1996).3 Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 3.10, 1995

Tex. Gen. Laws 458, 465, amended by Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 60, 1995 Tex. Gen. Laws 2734, 2755, amended by Act of May 17, 1997, 75th Leg., R.S., ch. 488, § 4, 1997 Tex. Gen. Laws 1812, 1813. 5 In the instant case, the trial court appli ed Art icle 42.12, section 15(h)(2) 3 which at the time the arrest warrant was executed provided that:
Ajudge may

cred it against any time a defendant is subsequently required to serve in a state jail felony facility after revocation of community supervision time served by the defendant in county jail from the time of the defendant's arrest and confinement until sentencing by the trial court.
At the conclusion of the hearing on the motion to revoke and the trial court's assessment of punishment, the court announcedthat it would“exerci se its discretion provided in the Code of Criminal Procedure and decline to give [appellant] credit for the time spent in county jail.”
In Jimerson v. State, 957 S.W.2d 875, 877 (Tex.App.--Texarkana 1997, no pet.), the court addressed the question of whether Article 42.12, section 15(h)(2) passed constitutional muster under Article I, section 19 of the Texas Constitution and, in applying the6

reasoning of Canada , determined that to the extent that the statute gives discretion to grant or deny credit for time served in confinement, it is unconstitutional. We agree with the State that because Canada controls the disposition of this case and requires that appellant be given credit for time served, the trial court abusedits discretion in denying credit for time served. However,
we do not agree with the State's contention that appellant is only entitledto 111 days credit when the period of his confinement was 198 days. Any time spent in confinement by appellant pursuant to the execution of a pre-revocation warrant cannot be denied. See Price, 922 S.W.2d at 958. Appellant's first issue is sustained. Our sustention of this issue pretermits a discussion of the remaining issues. Tex. R. App. P. 47.1. Accordingly, the judgment, as reformed to reflect credit for time served of 198 days, is affirmed.

Don H. Reavis Justice7

Do not publish.