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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 41811

STATE OF IDAHO,

 Plaintiff-Appellant,

v.

COREY ALLEN THIEL,

 Defendant-Respondent.

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Boise, January 2015 Term

2015 Opinion No. 27

Filed: February 27, 2015

Stephen W. Kenyon, Clerk

 

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Appeal from the District Court of the Fourth Judicial District of the State of

Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge. Hon.

Carolyn Minder, Magistrate Judge.

The judgment of the district court is affirmed.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for

appellant. Mark W. Olson argued.

Ada County Public Defender’s Office, Boise, attorneys for respondent.

Dylan J. Orton argued.

__________________________

W. JONES, Justice

I. NATURE OF THE CASE

This case presents an issue of statutory interpretation. Idaho Code section 20-621 

authorizes commutation of county jail sentences for good behavior, making county inmates with 

good records while incarcerated eligible for five (5) days off for each and every month of their 

sentence. A prisoner’s eligibility, however, is conditioned upon receiving a recommendation 

from the supervising county sheriff. The primary issue presented in this case is whether the 

statute vests the magistrate court with the discretion to reject a recommendation from a sheriff.

II. FACTUAL AND PROCEDURAL BACKGROUND

In December 2011, Corey Thiel (Thiel) was charged by the State of Idaho (State) with 

felony domestic battery. Pursuant to an agreement with the State, Thiel pled guilty to an 

amended charge of misdemeanor domestic battery and was placed on supervised probation. 
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Approximately one week after entry of this guilty plea, on February 29, 2012, Thiel was charged 

with a misdemeanor violation of a no-contact order for an incident that occurred while the 

battery charge was pending. On March 13, 2012, Thiel pled guilty to violating the no-contact 

order, and the magistrate court imposed suspended jail time and two years of unsupervised 

probation, while crediting time served. Under the terms of his probation, Thiel was required to 

comply with the terms of supervised probation established in the underlying battery case.

Less than two months thereafter, on May 2, 2012, the State moved for the court to issue a 

bench warrant for Thiel’s arrest based on probation violations. At a June 15, 2012 hearing on the 

State’s motion, Thiel admitted the violations, specifically regarding his failure to appear for drug 

testing and for providing a diluted drug test. The court reinstated Thiel on probation. 

Approximately four months thereafter, the State moved for a second set of probation violations, 

alleging that Thiel failed to maintain contact with his assigned probation officer and also failed 

to provide documentation that he had completed the required domestic violence treatment. At a 

March 15, 2013 hearing on the State’s motion, Thiel admitted the violations. The court revoked 

Thiel’s probation and imposed his original sentence of 356 days, with a credit of 67 days. Thiel 

was taken into custody and began serving his sentence in the Ada County Jail. 

On October 15, 2013, the Ada County Sheriff’s Office submitted a letter to the magistrate 

court recommending that Thiel be granted an early release for good behavior pursuant to Idaho 

Code section 20-621. Specifically, the Sheriff cited the statute and wrote, “While an inmate in 

the Ada County Jail, [Thiel] had a good record and performed all assigned tasks in an orderly 

and peaceable manner.” Given this good behavior, the Sheriff recommended 55 days of early 

release time, or 5 days for each of the approximately 11 months of Thiel’s sentence. Under this 

calculation, Thiel’s release date would be November 4, 2013. The bottom of the letter included a 

signature caption for the magistrate judge, designed to facilitate the court’s acceptance of the 

recommendation. On October 23, 2013, however, the magistrate court denied the Sheriff’s 

request. In the caption provided the court stated, “I do not agree to any release. This decision will 

be purely up to the [Ada County Sheriff’s Office], but I will not [illegible] permission.”

On November 14, 2013, Thiel separately moved for his “immediate release” based on the 

Sheriff’s letter. On November 15, 2013, the magistrate court denied this motion, writing, “I will 

not sign an order releasing an untreated, violent offender into the community. The Ada County 
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Sheriff, if he believes he has the authority to do so, may release regardless of my [expressed]

concerns for safety.” Thiel appealed this denial of his motion for release to the district court.

In its intermediate appellate capacity, and on an expedited basis, the district court 

reversed the magistrate court’s decision, holding that where a county sheriff recommends an 

inmate be released pursuant to Idaho Code section 20-621, the magistrate court is required to

follow the recommendation and release the inmate. The State timely appealed the district court’s

intermediate appellate decision to this Court.

III. ISSUES ON APPEAL

1. Whether Idaho Code section 20-621 vests the magistrate court with the discretion to 

reject a sheriff’s recommendation for an inmate’s early release based on good behavior.

2. Whether Idaho Code section 20-621, if it provides no discretion to the magistrate court, 

violates separation of powers.

IV. STANDARD OF REVIEW

This Court exercises free review over questions of statutory interpretation 

and application. Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 15, 232 P.3d 330, 

336 (2010) (citations omitted). On review, “[a]n unambiguous statute must be 

given its plain, usual, and ordinary meaning. Statutory provisions should not be 

read in isolation but instead are interpreted in the context of the entire 

document.” Id. “A statute is ambiguous where the language is capable of more 

than one reasonable construction.” Hayden Lake Fire Prot. Dist. v. Alcorn, 141 

Idaho 388, 398, 111 P.3d 73, 83 (2005) (quotation omitted), rev’d on other 

grounds by Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 467 (2012). 

However, statutory language is not ambiguous “merely because the parties 

present differing interpretations to the court.” State v. Doe, 140 Idaho 271, 274, 

92 P.3d 521, 524 (2004) (citing Matter of Permit No. 36–7200, 121 Idaho 819, 

823, 828 P.2d 848, 852 (1992)).

Farm Bureau Mut. Ins. Co. of Idaho v. Eisenman, 153 Idaho 549, 552, 286 P.3d 185, 188 (2012). 

V. ANALYSIS

A. Idaho Code section 20-621 plainly vests no discretion with the magistrate court.

The parties’ dispute centers on whether Idaho Code section 20-621 vests the magistrate 

court with the discretion to reject a recommendation made by a county sheriff regarding an 

inmate’s early release for good behavior. The State argues that the statute either clearly gives 

magistrate judges discretion in the good-time early release process, or is at least ambiguous as to 

the respective roles and duties of the sheriff and magistrate judge in the process. Under both 

scenarios, the State asserts that the legislature did not intend to give county sheriffs unbridled 

authority to release inmates from county jail. Thiel contends that the statute is plainly worded 
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and gives the magistrate court no discretion or authority to disregard or reject a recommendation 

from a sheriff in the context of good-time early releases. For the reasons outlined below, under a 

plain and ordinary reading of the statute, the magistrate court is vested with no discretion in the 

good-time early release process.

Idaho Code section 20-621 reads as follows:

Every person serving a jail sentence in a county jail in the state of Idaho who has 

a good record as a prisoner and who performs the tasks assigned him in an orderly 

and peaceable manner, shall upon the recommendation of the sheriff be allowed 

five (5) days off of each and every month of his sentence, by the magistrate judge.

I.C. § 20-621.

The State argues that the statute unambiguously vests discretion with the magistrate 

court. Alternatively, the State asserts that the statute is ambiguous, pointing to the conflicting 

meanings of the terms “recommendation,” “allowed,” and “shall” as support. In applying the 

plain and ordinary meanings of these terms, the State describes a “recommendation” as “a 

suggestion which may or may not be followed, rather than a mandatory directive,” and as an 

“action which is advisory in nature rather than one having any binding effect.” As to the 

legislature’s use of “be allowed,” the State asserts that the phrase connotes “permission or 

eligibility,” but does not mandate or direct acceptance. Thus, in parsing the language, the State 

argues that while the statute provides county sheriffs with the authority to recommend early 

releases under certain circumstances, it does not expressly bind or require magistrate courts to 

follow said recommendations. The State contends that if the legislature intended to bind the court 

to these recommendations, it would have made its intention clear by expressly stating “shall 

release” or “shall follow the recommendation for release.”

The State also advances certain policy arguments in support of its position, specifically 

that there is “no oversight or review” of a sheriff’s determination that an inmate has complied 

with the statute. For example, in the letter recommending Thiel’s early release, the Ada County 

Sheriff’s Office quoted the relevant language from the statute, but provided no documentation or 

support evidencing that Thiel’s custodial time qualified as good and peaceable. Lastly, the State 

contends that an interpretation of the statute offering no judicial discretion or review endangers 

certain rights held by Idaho crime victims pursuant to Idaho Code section 19-5306(1)(e), 

specifically the right to be heard at all criminal justice proceedings including those where a 

defendant’s release from custody is considered. The State argues this right to be heard “would be 
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meaningless if a magistrate court has no authority other than to follow the mandatory directive of 

a county sheriff to release an inmate.”

Thiel argues that the statute is plainly worded and unambiguous, and asserts that the 

State’s focus on the terms “recommendation” and “allowed” overlooks and disregards the 

“statute’s controlling imperative ‘shall.’” Further, Thiel relies on an opinion issued by this Court 

interpreting an earlier version of the same statute. While the statute has since been slightly 

adjusted, Thiel argues that the Court has already recognized law enforcement’s complete 

authority to make this determination, leaving no statutory discretion for the court. As such, Thiel 

contends that the statute creates a mere ministerial duty for the magistrate court, with no

substantive discretion in the process.

“‘The objective of statutory interpretation is to give effect to legislative intent.’” State v. 

Doe, 156 Idaho 243, 246, 322 P.3d 976, 979 (2014) (quoting State v. Yzaguirre, 144 Idaho 471, 

475, 163 P.3d 1183, 1187 (2007)). “The interpretation of a statute ‘must begin with the literal 

words of the statute; those words must be given their plain, usual, and ordinary meaning; and the 

statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe 

it, but simply follows the law as written.’” Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 

889, 893, 265 P.3d 502, 506 (2011) (quoting State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 

721 (2003)). Thus, this Court’s role is typically limited to “appl[ying] the plain and ordinary 

meaning of the terms and, where possible, [giving effect to each and] every word, clause and 

sentence.” Robison v. Bateman-Hall, Inc., 139 Idaho 207, 210, 76 P.3d 951 954 (2003).

Following the plain language of Idaho Code section 20-621, the authority to determine a 

good-time early release is vested solely with the sheriff. Use of the term “shall” signals clear 

legislative intent. The State’s arguments parsing the meanings and connotations of 

“recommendation” and “allowed” are unpersuasive and ignore the operative and controlling 

imperative “shall” at the beginning of the phrase at issue. “Shall” acts as a qualifier to all other 

terms within the phrase, including “be allowed.” Thus, an ordinary reading of the statute 

establishes that this determination rests entirely within the province of the sheriff and leaves no 

room for judicial discretion in the process.

The Court’s precedent with this statute supports this reading. Without expressly stating 

that the magistrate court lacks discretion, the Court previously held that the statute at issue vests 

authority with law enforcement to determine whether an inmate qualifies for early release under 
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the statute. See State v. Hughes, 102 Idaho 703, 639 P.2d 1 (1981). The Hughes Court held that 

under Idaho Code section 20-621, sentences of county inmates are “subject to the authority of the 

sheriff . . . to approve not more than five (5) days per month reduction for good time.” Id. at 705,

639 P.2d at 3. If the sheriff has this authority, then by extension, the magistrate court does not.

“If [a] statute is not ambiguous, this Court does not construe it, but simply follows the 

law as written.” Schwartz, 139 Idaho at 362, 79 P.3d at 721. “We have consistently held that 

where statutory language is unambiguous, legislative history and other extrinsic evidence should 

not be consulted for the purpose of altering the clearly expressed intent of the legislature.” City 

of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d 961, 963 (1993). Idaho Code 

section 20-621 is not ambiguous. As such, this Court does not construe it but simply follows it as 

written.1

As noted by the district court in overturning the magistrate court on intermediate appeal, 

the statute, as written, creates a ministerial duty for the court. We affirm the district court’s 

finding that the statute is ministerial and does not allow for judicial discretion. A ministerial act 

or duty “involves obedience to instructions, but demands no special discretion, judgment, or 

skill. [A ministerial act] is absolute, certain and imperative, involving merely execution of a 

specific duty arising from fixed and designated facts.” Ausman v. State, 124 Idaho 839, 842, 864 

P.2d 1126, 1129 (1993) (quoting Black’s Law Dictionary 899 (6th ed. 1990)). A ministerial duty 

is “[o]ne regarding which nothing is left to discretion—a simple and definite duty, imposed by 

law, and arising under conditions admitted or proved to exist.” Id. If a statute or rule is “clear, 

 1 When the legislature has vested judicial discretion in similar contexts, it has done so expressly by using clear and 

obvious language. Idaho Code section 19-2521 is instructive in this regard. It outlines factors for courts to consider 

in deciding whether a convicted defendant is to be placed on probation or imprisoned. In section 19-2521, the 

legislature expressly authorized or made reference to judicial discretion, i.e. “while not controlling the discretion of 

the court.” I.C. § 19-2521(2). This clearly signals legislative intent regarding the judiciary’s authority, and the Court 

has long recognized judicial discretion in accepting or rejecting law enforcement recommendations in this context.

State v. Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001) (“The decision to relinquish jurisdiction or grant 

probation is committed to the district judge’s discretion. The [law enforcement] recommendation is purely advisory 

and is in no way binding upon the court’s decision. [A] judge need not follow the recommendation of [law 

enforcement] and the ultimate decision is discretionary . . . .”) (citations, alterations, and quotation marks omitted).

In the statute at issue in this action, however, there is no similar express grant or reference to judicial discretion. If 

the legislature intended to vest the judiciary with discretion in the good-time early release process, Idaho Code 

section 20-621 would have expressly authorized or referenced the court’s discretion. With minimal additions, the 

statute could have been written as follows to achieve this result: “. . . shall upon the recommendation of the sheriff 

and with the concurrence of the magistrate judge be allowed five (5) days off of each and every month of his 

sentence, by the magistrate judge.” This would have conferred discretion. As written, however, the statute does not 

expressly or impliedly grant discretion to the judiciary.
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specific, and mandatory with respect to what a judge must do[,] . . . [t]his is a ministerial act as 

opposed to a discretionary or judicial one.” Ausman, 124 Idaho at 842–43, 864 P.2d at 1129–30.

The State relies on statutory construction to support its argument that there is uncertainty 

regarding the magistrate court’s role in the good-time release process. Specifically, the State 

contends that the legislature would not have included the magistrate judge in the statute if it did 

not intend for the court to have some discretion in the matter. This argument is unavailing. While 

the magistrate judge is certainly included in the statutory scheme, the statute vests no discretion 

with the judge. Rather, the magistrate judge’s designated role is a ministerial one. Under the 

statute, if a sheriff finds that an inmate in county jail has a good custodial record and has 

performed the tasks assigned in an orderly and peaceable manner, and the sheriff so 

recommends, the magistrate judge is required to commute five days off of each and every month 

of the inmate’s sentence. The magistrate court is included in the process for procedural clean-up 

reasons; more plainly, for purposes of administrative record-keeping and finality, as well as 

serving as a potential mechanism for providing crime victims with notice of the act of release,

there must be some official court record memorializing early releases.

Beyond the statute at issue, the State argues that if Idaho Code section 20-621 vests no 

discretion with the magistrate judge, then it endangers certain rights held by Idaho crime victims 

under the Victims’ Rights Act, Idaho Code section 19-5306. This argument is also not 

persuasive. Under the pertinent portions of the Victims’ Rights Act, a crime victim has the right 

to be notified of and an opportunity to be heard “at all criminal justice proceedings considering a 

plea of guilty, sentencing, incarceration, placing on probation or release of the defendant unless 

manifest injustice would result,” as well as the right to be notified when a defendant is released 

from custody. I.C. § 19-5306(1)(d)-(e), (j). Statutes that relate to the same subject matter “are to 

be construed in harmony, if reasonably possible.” State v. Barnes, 133 Idaho 378, 380, 987 P.2d 

290, 292 (1999). Thus, we must reconcile apparent inconsistencies between Idaho Code section 

20-621 and the Victims’ Rights Act if it is possible to do so. Id. at 382, 987 P.2d at 294. 

The statutes at issue here can easily be harmonized, as there is no apparent conflict 

between the good-time early release statute and the Victims’ Rights Act. The Victims’ Rights 

Act states that a crime victim is entitled to be notified of any proceeding related to a defendant’s 

release, as well as when a defendant is actually released. I.C. § 19-5306(1)(d), (j). Nothing in 

Idaho Code section 20-621 prevents this notice from occurring. Further, the Victims’ Rights Act 
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provides victims with an opportunity to be heard at proceedings considering, inter alia, 

sentencing, incarceration, or release of a defendant. I.C. § 19-5306(1)(e). The State contends it 

would be meaningless for a victim to be heard at a good-time early release hearing if the court 

lacks the discretion to weigh, consider, or otherwise act on the victim’s concerns. While this is 

true, it does not violate the Victims’ Rights Act.

The Victims’ Rights Act gives crime victims a voice in proceedings related to pleas, 

sentencing, incarceration, probation, or release. However, an impact can only be had in 

proceedings where judicial discretion is involved. The Victims’ Rights Act creates a right to be 

heard at proceedings “considering” a defendant’s possible release, which connotes the exercise 

of discretion. As stated above, the good-time early release process involves no exercise of

judicial discretion. Since the court has no discretion in the process outlined in Idaho Code section 

20-621, the legislature did not intend for a crime victim’s voice to impact these proceedings. 

Rather, a ministerial duty is imposed on the court. Once a recommendation has been made by the 

sheriff, there is nothing left to consider. Thus, the two statutes can be construed harmoniously as

nothing in Idaho Code section 20-621 conflicts with Idaho Code section 19-5306.

For all of these reasons, this Court holds that the respective roles and duties of the sheriff 

and magistrate court in the early release process outlined in Idaho Code section 20-621 are 

clearly defined. Idaho Code section 20-621 is unambiguous and a plain-language reading 

establishes that a magistrate judge exercises no oversight or discretion in the good-time earlyrelease process. Rather, the duty imposed on the magistrate court is a ministerial one. The 

legislature intended to grant the sheriff commutation authority for inmates in county jail, with a 

maximum possible reduction of five days off for each month of an inmate’s sentence. In 

receiving recommendations from the sheriff, the magistrate judge was meant to have no 

discretion in the process. The district court’s decision overturning the magistrate court on 

intermediate appeal is affirmed. 

B. Idaho Code section 20-621 does not violate separation of powers.

If the statute is held to vest no discretion with the magistrate court, the State argues that it 

violates the Idaho Constitution by improperly divesting sentencing authority from the judiciary. 

For the reasons outlined below, this argument fails.

The Idaho Constitution prohibits any branch of government from exercising powers that 

properly belong to another branch, unless expressly directed or permitted by the State 
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Constitution. IDAHO CONST. art. II, § 1. “Our State Constitution is a limitation, not a grant 

of power, and the [l]egislature has plenary powers in all matters, except those prohibited by 

the Constitution.” Rich v. Williams, 81 Idaho 311, 323, 341 P.2d 432, 439 (1959). “Because 

the Constitution is not a grant of power, there is no reason to believe that a Constitutional

provision enumerating powers of a branch of government was intended to be an exclusive list. 

The branch of government would inherently have powers that were not included in the list.”

Idaho Press Club, Inc. v. State Legislature, 142 Idaho 640, 642–43, 132 P.3d 397, 399–400 

(2006).

“[T]he powers reserved to the several departments of the government, but not specifically 

enumerated in the [C]onstitution, must be defined in the context of the common law.” State v. 

Branson, 128 Idaho 790, 792, 919 P.2d 319, 321 (1996).

It was early held by this [C]ourt that the power to define crimes and 

prescribe penalties belongs to the legislative department of government; that the 

power to try offenders, and to enter judgment convicting and sentencing those 

found guilty, belongs to the judicial department; [and] that the power and 

prerogative of granting pardons, paroles or commutations belong to the executive 

department.

Spanton v. Clapp, 78 Idaho 234, 237, 299 P.2d 1103, 1104 (1956). 

The statute at issue in this case, Idaho Code section 20-621, is entitled “Commutation for 

good behavior” and acts as a form of sentence commutation. The good-time early release statute 

does not encroach upon the powers of the judiciary in violation of the Idaho Constitution for the 

following reasons. For one, and as recognized by the Spanton Court, the judiciary has 

constitutionally recognized authority in the sphere of conviction and judgment, but not in the 

period following the entry of judgment. Id. at 238, 299 P.2d at 1104. The good-time early release

program falls outside of the realm of conviction and judgment because it impacts only the period

following the entry of judgment. Two, the executive branch wields the power to pardon and 

commute sentences, and the good-time early release statute properly places commutation 

authority in the hands of an executive agency, the supervising county sheriff’s office. Lastly, the 

early release scheme can be construed as falling within the legislature’s power to fix punishment. 

In defining crimes and fixing punishment, the legislature “has great latitude” in the exercise of 

this power. Malloroy v. State, 91 Idaho 914, 915, 435 P.2d 254, 255 (1967). The scheme at issue 

here simply reduces an inmate’s sentence if certain conditions are met. The legislative 

pronouncement that an inmate is entitled to an early release upon the recommendation of the
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sheriff is a legitimate exercise of the legislative power to define crimes and their penalties and 

does not involve resentencing inmates. For all of these reasons, Idaho Code section 20-621 does 

not violate separation of powers under the Idaho Constitution.

In arguing that the statute improperly divests sentencing authority from the judiciary, the 

State relies on this Court’s holding and rationale in State v. McCoy, 94 Idaho 236, 486 P.2d 247 

(1971). McCoy involved an attempt by the legislature to establish, by statute, a mandatory 

minimum sentencing scheme. The McCoy Court struck down the statute based on the judiciary’s 

common law authority to suspend a sentence. The Court in State v. Branson explained the

McCoy holding as follows: “[T]he [common law] authority possessed by the courts to sentence 

necessarily included the power to suspend that sentence, [thus] this power may not properly be 

abrogated by statute. It is an ‘inherent right’ of the judiciary and one which the separation of 

powers doctrine places beyond legislative mandate.” Branson, 128 Idaho at 792, 919 P.2d at 321. 

Thus, the McCoy Court held that the legislature could not enact a mandatory minimum sentence 

absent a constitutional amendment, given that “the judiciary possessed the power at common law 

to suspend a sentence” and a mandatory minimum sentence interferes with this power. McCoy, 

94 Idaho at 240, 486 P.2d at 251.

In response to the Court’s holding in McCoy, the legislature proposed and the people 

adopted an amendment to Article V, Section 13 of the Idaho Constitution. IDAHO CONST. art. V, 

§ 13. This amendment granted the legislature the constitutional authority to enact mandatory 

minimum sentences. After the amendment to Article V, Section 13, it was no longer 

unconstitutional for the legislature to issue a mandatory minimum sentence infringing upon the

judiciary’s inherent, common law authority to exercise its discretion to suspend a sentence.

The facts presented in this case are not the same as those in McCoy. The Court’s holding 

in McCoy was premised on courts possessing, at common law, the power to suspend a sentence. 

However, a suspension is not the same as a commutation. For one, “[a] commutation diminishes

the severity of a sentence, e.g. shortens the term of punishment,” while a suspension delays the 

entry of a sentence. Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778, 781 (1975). More 

importantly, whereas the authority to suspend a sentence rests with the judiciary at common law, 

courts do not similarly possess the power at common law to commute a sentence. A 

commutation is inherently a creature of the executive branch. For these reasons, the State’s 

reliance on McCoy is misplaced.
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The legislature has the constitutional authority to identify and define criminal acts, as 

well as the power to prescribe penalties for these crimes. If it has the power to do these things, it 

surely has the power to enact a targeted early-release scheme to lessen the penalties for these 

crimes. Furthermore, the legislature has the authority to delegate the good-behavior 

determination to an executive branch agency. Thus, the good-time early release program 

contained in Idaho Code section 20-621 does not unconstitutionally infringe upon the judiciary’s 

inherent sentencing authority, and does not violate separation of powers principles.

VI. CONCLUSION

This Court affirms the judgment of the district court that the statute vests no discretion 

with the magistrate judge. Further, this Court holds that the statute itself does not violate

separation of powers principles under the Idaho Constitution.

Chief Justice BURDICK, Justices EISMANN, J. JONES, and Justice pro tem 

KIDWELL, CONCUR.