CAUSE NO. WR-82,437-01

 

 IN THE 

 COURT OF CRIMINAL APPEALS 

 AUSTIN, TEXAS 

 ____________________________________________________________ 

 

 EX PARTE SHERRON DONDRIEL PHILLIPS, 

 

 APPLICANT 

 __________________________________________________________ 

 ON APPLICATION FOR AN ARTICLE 11.07 WRIT OF HABEAS 

CORPUS IN CAUSE NO. CR-566-12-D(1) IN THE 206TH JUDICIAL 

 DISTRICT COURT, HIDALGO COUNTY, TEXAS

_____________________________________________________________ 

 APPLICANT’S BRIEF 

_____________________________________________________________ 

 ALFREDO MORALES, JR. 

 ATTORNEY AT LAW 

P.O. BOX 52942 

 MCALLEN, TX 78505-2942 

 (956) 536-8800 BUS 

(956) 381-4269 FAX 

 EMAIL: amjr700@gmail.com 

 

 ORAL ARGUMENT WAIVED 

WR-82,437-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/17/2015 4:02:58 PM

Accepted 3/17/2015 4:20:46 PM

ABEL ACOSTA

CLERK
 IDENTITIES OF PARTIES AND COUNSEL

 In order to assist the court in evaluating and determining whether there is

any reason which would require their disqualification or recusal from the 

case at bar, the Applicant certifies that the following is a list of the parties

and counsel who have an interest in the outcome of this case:

 PARTIES

 Applicant: Sherron Dondriel Phillips

 Inmate, Texas Dept of Criminal Justice

 TRIAL COUNSEL

 For Applicant: Toribio “Terry” Palacios 

 1805 E. Russell

Edinburg, TX 78539

 Michael Tuttle

 P.O. Box 4450

Edinburg, TX 78540

 For State: Joaquin Zamora, ADA

 Hidalgo County District Atty’s Office 

Hidalgo County Courthouse

100 N. Closner

Edinburg, TX 78539

 

 HABEAS COUNSEL

 For Applicant: Alfredo Morales, Jr.

 P.O. Box 52942

McAllen, TX 78505

 i
 For the State: Glenn Devino, ADA

 Hidalgo County District Atty’s Office

 Hidalgo County Courthouse

100 N. Closner

 Edinburg, TX 78539 

 For Board of Pardons

 and Parole: Joseph P. Corcoran, AAG

 Texas Atty General’s Office

 Appellate Division 

 P.O. Box 12548, Capitol Station

Austin, TX 78711

 JUDGE

 Trial judge: Rose Guerra Reyna

 Presiding Judge 

206th Judicial District

 Hidalgo County, TX

 G. Jaime Garza

Auxiliary Criminal Court

 Hidalgo County, TX

 ii
 TABLE OF CONTENTS

IDENTITIES OF PATIES AND COUNSEL . . . . . . . . . . . . . . . . . . . i - ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv - v

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT AND AUTHORITIES UNDER ISSUES ONE

AND TWO (CONSOLIDATED) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 - 5 

ARGUMENT AND AUTHORITIES UNDER ISSUE THREE. . . . 5 - 10

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

 iii
 INDEX OF AUTHORITIES 

 CONSTITUTIONS

TEXAS CONSTITUTION

 Article V, Section 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

 STATUTES

TEXAS GOVERNMENT CODE

 Section 311.016(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

 Section 508.1411 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 6, 7, 9, 10

 RULES

TEXAS RULES OF APPELLATE PROCEDURE

 Rule 9.4(i)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

 Rule 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 CASES

UNITED STATES SUPREME COURT

 Olin v. Wakinekona, 

 103 S.Ct. 1741 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEXAS COURT OF CRIMINAL APPEALS

 Armstrong v. State,

 340 S.W.3d 759 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . 8, 9

 Braxton v. Dunn,

 803 S.W.2d 318 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . 8

 

 iv
 Curry v. Wilson,

 853 S.W.2d 40 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . 10

 Dickens v. Second Court of Appeals

 727 S.W.2d 542 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . 8

 Ex Parte Geiken,

 28 S.W.3d 553 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . 5

 Ex Parte Lockett,

 956 S.W.2d 41 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . 5

 Ex Parte Walton,

 422 S.W.3d 720 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . 11

 Healy v. McMeans,

 884 S.W.2d 772 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . 9

 In Re Daniel,

 396 S.W.3d 545 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . 10

 Lanford v. Fourteenth Court of Appeals,

 847 S.W.2d 581 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . 9

 Perkins v. Third Court of Appeals,

 738 S.W.2d 276 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . 8

 State ex rel Hill v. Pirtle,

 887 S.W.2d 921 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . 8

 State ex rel Holmes v. Court of Appeals,

 885 S.W.2d 389 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . 5

 

 v
 PRELIMINARY STATEMENT

 In formulating a response to the questions posed by the court, the 

Applicant made the following assumptions in conducting his legal research 

and analysis, and in constructing his arguments for purposes of this

brief: 1) that the Applicant received advance notice of the Board’s intention

to consider him for parole; 2) that there is no presumption to parole in this

case; and, 3) that the Applicant’s complaint does not challenge the Board’s

discretionary decision to not grant him parole; rather, Applicant challenges

the adequacy of the requisite statutory notice of the Board’s post-hearing

decision.

 STATEMENT OF THE CASE 

 Applicant was indicted by an Hidalgo County grand jury with possession 

of marijuana, a third degree felony. Applicant plead guilty and was placed 

on deferred adjudication and community supervision. Neither a motion for

new trial nor an appeal of the deferred adjudication order was filed. 

Subsequently, the State filed a motion to adjudicate and, as a result of a plea

bargain, Applicant plead true to the allegations in the State’s motion and 

was sentenced to 42 months in the Institutional Division of the Texas 

Department of Criminal Justice. (Habeas Corpus Application and Trial 

Court Findings.)

 1
 STATEMENT REGARDING ORAL ARGUMENT

 Because the issues in the case involve well-settled principles of law,

oral argument will not aid in the court’s decisional process. Therefore,

Applicant waives oral argument. 

 

 ISSUES PRESENTED

 The court ordered that the parties brief the following questions for

review: 1) whether an applicant who contends that Sect. 508.1411 of 

the Texas Government Code has an adequate remedy on habeas when there 

is no presumption of release to parole; 2) whether, assuming arguendo, that 

an applicant has an adequate remedy on habeas, the written notice provision

of Sect. 508.1411 satisfies due process; and, 3) whether an application for

a writ of mandamus is the proper remedy for such claim.

 STATEMENT OF FACTS

 On August 1, 2014, the Board of Pardons and Parole (hereinafter the

“Board”), pursuant to Section 508.1411 of the Texas Government Code,

notified the Applicant that his parole had been denied. Unsatisfied with the

adequacy of the statutory notice sent by the Board, the Applicant filed this 

post-conviction writ of habeas corpus in accordance with Rule 73 of the 

Texas Rules of Appellate Procedure on this court’s prescribed form.

 

 2
 SUMMARY OF THE ARGUMENT

 Because Issues One and Two are interrelated, the Applicant consolidates

the argument of these two issues under a single issue.

 For purposes of this brief, the undersigned court-appointed counsel 

contends that the Applicant does not have a remedy on habeas, because

the Applicant has not demonstrated that he has a liberty interest in being

released on parole; the Applicant’s challenge to the Board’s notice denying 

him parole does not directly implicate the fact or duration of his 

confinement; and, his complaint does not raise any jurisdictional defects or 

denials of fundamental or constitutional rights.

 While Applicant’s claim does not raise a claim cognizable in a postconviction writ of habeas corpus, he does state a claim that can be addressed 

in an application for writ of mandamus.

 ARGUMENT AND AUTHORITIES UNDER 

 ISSUES NUMBERS ONE AND TWO

THE APPLICANT’S COMPLAINT THAT THE BOARD’S NOTICE

DENYING HIM PAROLE IS DEFFICIENT DOES NOT PROVIDE AN 

 ADEQUATE REMEDY ON HABEAS

 The Applicant’s chief complaint in his habeas application is that the

 3
Board’s Section 508.1411 post-hearing notice is inadequate and deficient,

because it did not provide him with the information which formed the basis 

for its decision to deny him parole.

 While the Applicant attempts to couch his complaint as a constitutional

violation of his due process rights secured under the federal constitution,

it fails, given that the facts underlying his complaint do not rise to the level 

of a constitutional violation. More specifically, he does not argue (nor do

the facts support) that the statutory notice scheme fails to provide any type 

of notice that comports with established guidelines and legislative mandates

ensuring an opportunity to be heard or considered. Rather, he argues that 

the post-hearing notice the Board sent him was deficient, since it did not

state with specificity what factor(s) it considered in denying him parole.

Such a complaint does not state a constitutional violation implicating due

process. Additionally, Applicant has not established that he has a liberty

interest in getting released on parole.

 The Due Process Clause is invoked only where state procedures 

imperil a protected liberty or property interest. Olim v. Wakinekona, 

103 S.Ct. 1741 (1983). Since the Applicant’s case does not involve a 

mandatory release supervision situation, he does not enjoy a reasonable

 4 
expectation of release on parole. See and compare with, Ex Parte Geiken, 

28 S.W.3d 553 (Tex. Crim. App. 2000)(mandatory release statute creates

a liberty interest in parole).

 Because the Applicant’s complaint and challenge to the Board’s parole

post-hearing notice neither directly implicate the fact or duration of his 

confinement, Ex Parte Lockett, 956 S.W.2d 41 (Tex. Crim. App. 1997),

nor raise any legitimate jurisdictional defects or allegations of violations

of constitutional rights, State Ex Rel. Holmes v. Court of Appeals, 885

S.W.2d 389 (Tex. Crim. App. 1994), the current application for writ of

habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure 

is not the proper procedural vehicle to address the relief Applicant seeks:

proper and sufficient statutory post-hearing notice for denying him parole.

 ARGUMENT AND AUTHORITIES UNDER

 ISSUE NUMBER THREE

THE WRIT OF MANDAMUS IS THE PROPER PROCEDURAL 

MECHANISM TO ADDRESS THE APPLICANT’S COMPLAINT

 OF DEFICIENT STATUTORY POST-HEARING NOTICE 

 

 The Applicant’s s only complaint is that the notice he received from the

Board denying him parole did not provide him with the requisite statutory

notice detailing the factor(s) which formed the basis for its decision. 

 5
 The Applicant’s contention is correct. 

 Section 508.1411 of the Texas Government Code, titled “Notification

of Parole Panel Decision,” reads in pertinent part:

(a) For each decision of a parole panel . . . denying the release of

an inmate . . ., the parole panel shall:

(1)Produce a written statement, in clear and understandable

language, that explains:

(A) the decision; and

(B) the reasons for the decision only to the extent those 

reasons relate specifically to the inmate; 

 (emphasis to original text added.)

 The statute makes it clear that the parole panel denying the release of

an inmate “shall” produce a written statement that is clear and easy to

understand and that explains the reason(s) for the denial that relate only to 

that particular inmate before it. See, Section 311.016(2), Texas

Government Code (“shall” when used in a statute imposes a duty). The

Board has no inherent powers or powers conferred by statute or rule 

permitting it to ignore express, mandatory statutory provisions.

 Because the statue clearly prescribes the type and specificity of the 

post-hearing denial notice, an application for writ of mandamus can

 6
resolve the Applicant’s complaint and provide him with adequate relief.

 In the particular case at bar, the Board’s denial notice sent to Applicant

did not comport with the mandatory statutory requisites. More specifically,

as can be gleaned from examining the Board’s notice to Applicant, the

letter was nothing more than a hodgepodge of alternative reasons for

his denial of parole, a far cry from the specificity required by Section

508.1411. Moreover, the Board’s notice was confusing, unclear, and

incomprehensible. More importantly, the notice was not tailored to address

the reasons that related “specifically to the inmate.” On the contrary, the

conjunction “or” was used throughout the denial notice, leaving the 

Applicant guessing which of the several alternative reasons applied 

specifically to him. Certainly it can be argued with relative ease that the

notice was not the “written statement, in clear and understandable 

language” explaining the reasons of its decision to not grant parole as

contemplated by the statute.

 Given that the Board did not comply with the statute’s mandate,

then, the Applicant can seek the appropriate relief through a writ of 

mandamus.

 The Texas Court of Criminal Appeals is empowered by, and has

 7
jurisdiction under, Article V, Section 5 of the Texas Constitution to issue 

writs of mandamus “in all criminal matters.” State ex rel Hill v. Pirtle, 887

S.W.2d 921 (Tex. Crim. App. 1994). And while the court has never issued

a definite statement of what constitutes a “criminal law matter,” the court

has held that the term “encompass[es], at a minimum, all legal issues

arising directly out of a criminal prosecution.” Armstrong v. State, 340

S.W.3d 759 (Tex. Crim. App. 2011). However, the issuance of the writ is

never a matter of right, but rests within the sound discretion of the court.

Dickens v. Second Court of Appeals, 727 S.W.2d 542 (Tex. Crim. App. 

1987). Additionally, mandamus is a drastic measure, to be invoked only in

extraordinary situations. Perkins v. Third Court of Appeals, 738 S.W.2d

276 (Tex. Crim. App. 1987). More importantly, mandamus is only available

to compel a ministerial, not discretionary, act. Braxton v. Dunn, 803 

S.W.2d 318 (Tex. Crim. App. 1991). “An act is said to be ministerial where

the law clearly spells out the duty to be performed . . . with such certainty 

that nothing is left to the exercise of discretion or judgment.” Texas Dept. of 

Corrections v. Dalehite, 623 S.W.2d 420 (Tex. Crim. App. 1981).

 Of course, before the court can entertain and grant a writ of mandamus,

the applicant must fulfill two prerequisites: first, he must show that he

 8
has no other adequate remedy at law; and, second, he must show that, under

the relevant law and facts, he has a clear right to the relief he seeks. Healy

v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994). The Applicant here

has met both prongs: first, he can neither appeal the board’s decision nor 

challenge it through a post-conviction writ of habeas corpus; and, second,

Section 508.1411 spells out, with specificity, what information must be 

contained in the Board’s post-hearing parole denial letter, leaving nothing

to the exercise of its discretion or independent judgment in applying the 

statute. 

 The Applicant reasonably anticipates that the State of Texas or the

Board of Pardons and Parole will argue that the statute he challenges is

a civil administrative statute and is, therefore, not a “criminal law matter”

over which this court has jurisdiction. However, the court has already put 

that issue to rest. In both Lanford v. Fourteenth Court of Appeals, 847 

S.W.2d 581 (Tex. Crim. App. 1993) and Armstrong v. State, supra, this

court held that “(a)n issue does not cease to be a criminal law matter merely

because elements of civil law must be addressed to resolve the issue.” Id at 

p. 765. The statute in question here, while arguably civil in nature,

implements the Texas Code of Criminal Procedure as it specifically relates

 9
to the trial court’s imposition of the Applicant’s sentence. Therefore,

since the granting or denial of parole arises as a result of, or incident to,

a criminal prosecution, the issue is one which necessarily involves a

“criminal law matter,” subject to the court’s mandamus jurisdiction. Curry 

v. Wilson, 853 S.W.2d 40 (Tex. Crim. App. 1993).

 Even though the Applicant has not specifically filed an application for

writ of mandamus, this court has the legal authority to treat his current 

application for habeas corpus as an application for writ of mandamus under

current precedent. In Re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013).

 

 CONCLUSION AND PRAYER

 While the Applicant’s complaint that the Board’s post-hearing notice

denying him parole cannot be urged in a habeas corpus petition, such 

complaint can be addressed in an application for writ of mandamus.

Accordingly, the Applicant respectfully requests that the court treat his

habeas application as one for writ of mandamus, and that it order the

Board to re-issue its notice, with the specificity and particularity

mandated by Section 508.1411.

 

 10
 Respectfully Submitted,

 Alfredo Morales, Jr.

Attorney at Law

P. O. BOX 52942

McAllen, TX 78505-2942

 (956) 536-8800 TEL

 (956) 381-4269 FAX

 Email: amjr700@gmail.com

 /S/ Alfredo Morales, Jr.

 __________________________

 ALFREDO MORALES, JR.

 STATE BAR NO. 14417290

 CERTIFICATE OF COMPLIANCE 

 In accordance with Rule 9.4(i)(3) of the Texas Rules of Appellate

Procedure, and Ex Parte Walton, 422 S.W.3d 720 (Tex. Crim. App. 

2014), I, Alfredo Morales, Jr., court-appointed counsel of record for

Applicant, hereby certify that, relying on the word count of the computer

program used to prepare the Applicant’s Brief herein, the brief contains

3,253 words.

 /S/ Alfredo Morales, Jr.

 __________________________ 

 ALFREDO MORALES, JR.

 11
 

 CERTIFICATE OF SERVICE

 I, Alfredo Morales, Jr., hereby certify that a true and correct copy of the 

Applicant’s Brief was sent via regular mail to the following respective

counsel of record on this the 17th day of March, 2015:

 Glenn Devino, ADA

 Hidalgo County District Attorney’s Office

 Appellate Division

 Hidalgo County Courthouse

 100 N. Closner

 Edinburg, TX 78539

 Counsel for the State of Texas

 Joseph P. Corcoran, AAG

 Office of the Attorney General of Texas

 Criminal Appeals Division

 P.O. Box 12548

 Capitol Station

 Austin, TX 78711

 Counsel for the Texas Board of Pardons and Paroles

 

 /S/ Alfredo Morales, Jr. 

 __________________________

 ALFREDO MORALES, JR. 

 12