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 appeal 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 court abused its

discretion in not giving him credit for time served. Issues two
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and three 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 that the trial court abused its discretion in

denying appellant with credit for time served, we reform the

judgment, but in all other respects 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 used a controlled substance and

failed to report to the Community and Corrections Department in

April 1997, both violations of the conditions of his probation.

Appellant was arrested on July 22, 1997, and confined to Tarrant

County Jail until February 4, 1998, at which time a hearing was

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 the
1Repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165 §

12.22, 1997 Tex. Gen. Laws 327, 443.

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conclusion of the hearing, the trial court found that appellant

violated both conditions of his probation as set forth in the

State's petition, ordered that his probation be revoked, and

assessed punishment at 180 days confinement.

By his first issue, appellant complains that the trial court

abused its discretion in not awarding him credit for time served

from the 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 Parte Canada, 754 S.W.2d 660 (Tex.Cr.App. 1988), the

Court held that former Article 42.18, section 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 due
2No 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

jailed defendant awaiting a hearing on revocation with that of a

jailed defendant's right to appeal his conviction and reasoned that

the availability of discretion to decide whether to award credit

for time served before a revocation hearing constituted a punitive

policy that might “chill the parolee's decision to exercise his

constitutional right to a pre-revocation hearing.” Canada, 754

S.W.2d at 667. Thus, the court concluded that Article 42.18,

section 15(a), to the extent that it vested the Board of Pardons

and Paroles with discretion to deny credit for time served, was

unconstitutional. See Ex Parte Price, 922 S.W.2d 957, 958

(Tex.Cr.App. 1996).
3Act 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.

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In the instant case, the trial court applied Article 42.12,

section 15(h)(2)3 which at the time the arrest warrant was executed

provided that:

A judge may credit 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 announced that it

would “exercise 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 the
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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

abused its discretion in denying credit for time served. However,

we do not agree with the State's contention that appellant is only

entitled to 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

 Justice
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Do not publish.