EX PARTE ASHDOWN v. << (2024)

DISSENTING OPINION

This is not an involuntary plea case. It is an I-want-my-time-credit case. We should deny relief.

Applicant pled guilty pursuant to a plea agreement that included 268 days of pre-sentence jail time credit. The Texas Department of Criminal Justice (TDCJ) is not giving Applicant credit for 268 days but is instead giving him credit for 196 days, which is from the date he was arrested in the commission of the offense until the date he pled guilty. Applicant claims that TDCJ is breaching his plea agreement by not awarding 268 days. But Applicant is entitled to only 196 days of jail credit.¹ By statute, he cannot be awarded any more time credit than this. Applicant cannot receive the relief he requests.

The Court recasts Applicant's claim as an involuntary plea claim and remands the case to the habeas court to investigate that claim. What I expect to happen next is what just happened in another case where this Court recast a time-credit claim as an involuntary-plea claim.

In Ex parte Martinez,² Martinez claimed, like Applicant in this case, that he was not getting the pre-trial jail time credit he had plea bargained for. As it does here, this Court recast the claim as an involuntary plea claim and remanded it to the habeas court. After much work on the case, including a hearing, Martinez asked us to dismiss his writ application, saying in no uncertain terms that he did not want to dismantle his plea. He just wanted the time credit he had bargained for. The Court dismissed the application.

Applicant in this case is not trying to dismantle his plea. He just wants his time credit. He cannot have it. Rather than put Applicant, the habeas court, and the attorneys through a pointless remand process, we should deny relief.

I respectfully dissent.

FOOTNOTES

1.   See Tex. Code Crim. Proc. art. 42.03, § 2(a)(1).

2.   No. WR-95,676-01 (Tex. Crim. App. November 27, 2024) (dismissed without written order).