Guerrero, Eliott Nathaniel

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-75,456-02

IN RE ELIOTT NATHANIEL GUERRERO, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NOS. 1073367 & 1026226 IN THE 262ND DISTRICT COURT
HARRIS COUNTY

SCHENCK, P.J., delivered the opinion of the Court in which
RICHARDSON, YEARY, KEEL, WALKER, MCCLURE, FINLEY and PARKER,
JJ., joined. NEWELL, J., concurred.

OPINION

This is a “paper parole” case. 1 Relator Eliott Nathaniel Guerrero claims that
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his two stacked sentences (a 12-year sentence for possession of a controlled

substance and a 28-year sentence for aggravated assault) were incorrectly calculated

1
“Paper parole” is a parole determination that would not result in an actual, physical release of
the inmate from TDCJ custody. See Ex parte Johnson, 541 S.W.3d 827, 832 (Tex. Crim. App.
2017) (Keasler, J., concurring).
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by the TDCJ to run concurrently instead of consecutively, and that the error was only

discovered after he discharged his first sentence and the Parole Board voted for his

release to parole on the second sentence. Relator requested the Parole Board to

designate the date he would have been released on his first sentence had his

sentences been calculated correctly when he began serving them but has received no

response from the Parole Board. Relator filed this instant application for writ of

mandamus requesting this Court direct the Parole Board to comply with Section

508.150 of the Government Code and designate the date upon which he would have

been “eligible for release” on his controlled substances conviction had he been

sentenced to serve only that sentence.

However, we must first ascertain our jurisdiction to entertain this original

mandamus proceeding. State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 482 (Tex.

Crim. App. 1985) (“For a court to act, it must have jurisdiction to do so. This is

fundamental.”); Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980)

(“Unless the power or authority of a court to perform a contemplated act can be

found in the Constitution or laws enacted thereunder, it is without jurisdiction and

its acts without validity.”). We conclude that under the relevant constitutional and

statutory provisions, this Court does have jurisdiction to mandamus the Parole

Board. As to the merits of Relator’s claim, we agree with Relator that he does not

have an adequate remedy at law other than mandamus and that the Parole Board has
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violated a ministerial duty. Thus, Relator is entitled to relief.

I. INTRODUCTION

On July 19, 2006, in cause number 1026226 in the 262nd District Court of

Harris County, Texas, Relator pleaded guilty to possessing cocaine pursuant to a

negotiated plea in exchange for a twelve-year prison sentence. Roughly a week

before Relator arrived at TDCJ to begin serving his drug possession sentence, TDCJ

received additional information concerning a second-in-time judgment of conviction

and sentence. In fact, on March 7, 2007, in cause number 1073367 in the 262nd

District Court of Harris County, Texas, a jury had convicted Relator of aggravated

assault on a public servant and had sentenced him to twenty-eight years in prison.

The face of the judgment and sentence for the aggravated assault charge stated that

“this sentence shall run concurrently.” However, on the judgment’s second page,

the district court had entered a handwritten cumulation order just below a deadly

weapon finding, stating that the twenty-eight-year sentence was to run consecutively

to the twelve-year sentence.

Relator’s two sentences were inadvertently processed as “concurrent,” based

on the aggravated assault judgment’s first page. TDCJ’s system initially calculated

a single parole eligibility date for both concurrent sentences as June 26, 2020—the

date he was eligible for parole on his twenty-eight-year sentence—which was

“controlling” because it was the longest sentence. Relator fully discharged his
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twelve-year sentence on June 26, 2018, two years before the Parole Board was

scheduled to first review Relator for parole for both sentences.

On May 10, 2021, the Board favorably voted for Relator’s parole, conditioned

on Relator completing certain rehabilitation programs. On March 10, 2022, in

anticipation of his potential release to parole for his only remaining sentence, TDCJ

audited Relator’s time and sentence calculations. For the first time, TDCJ

discovered that Relator’s sentences were actually consecutive. The new designation

caused the TDCJ to automatically recalculate a new parole eligibility date of October

15, 2031. Once notified of the correction, the Parole Board withdrew its favorable

vote. Relator filed the instant petition for writ of mandamus in this Court, asking

this Court to direct the Parole Board to redesignate Relator’s parole eligibility date.

II. JURISDICTION

We first address jurisdiction. Respondents argue Section 22.002(c) of the

Texas Government Code precludes the Court from exercising jurisdiction against

the Parole Board.

The Texas Constitution and the Code of Criminal Procedure provide this

Court the power, in criminal law matters, to issue writs of mandamus. TEX. CONST.

art. V, § 5(c); TEX. CODE CRIM. PROC. art. 4.04, § 1. However, Section 22.002(c) of

the Government Code provides that the Texas Supreme Court has exclusive

mandamus jurisdiction over executive officers of the state. TEX. GOV’T CODE
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§ 22.002(c).

Section 22.002(c) provides:

Only the supreme court has the authority to issue a writ of mandamus
or injunction, or any other mandatory or compulsory writ or process,
against any of the officers of the executive departments of the
government of this state to order or compel the performance of a
judicial, ministerial, or discretionary act or duty that, by state law, the
officer or officers are authorized to perform.

Id. (emphasis added).

The Supreme Court of Texas has stated that “when a relator seeks to compel

an executive officer to perform duties imposed by law, generally [the Supreme

Court] alone is the proper forum.” A & T Consultants, Inc. v. Sharp, 904 S.W.2d

668, 672 (Tex. 1995) (orig. proceeding). “[A]ny of the officers of the executive

departments of the government of this state” has been interpreted to refer, “not to

every State official at every level, but only to chief administrative officers—the

heads of State departments and agencies who are charged with the general

administration of State affairs.” In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768,

776 (Tex. 1999) (citing Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427,

430–31 (Tex. 1963); Betts v. Johnson, 96 Tex. 360, 73 S.W. 4, 5 (1903)).

We find Respondent’s argument without merit. Plainly, the Parole Board does

not fall within the ambit of Section 22.002(c), which is limited to State’s chief

executive officers. We must therefore determine whether jurisdiction lies elsewhere.
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Article 4.04, Section 1, of the Code of Criminal Procedure provides that,

“[t]he Court of Criminal Appeals and each judge thereof shall have, and is hereby

given, the power and authority to grant and issue and cause the issuance of writs of

habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo,

prohibition, and certiorari.” TEX. CODE CRIM. PROC. art. 4.04. § 1. But what are

“criminal law matters” as contemplated in the Code?

The Texas Supreme Court has articulated that some of what it considers

criminal law matters include “guilt or innocence, the propriety of a sentence, the

criminal nature of particular conduct proved to have occurred, or compliance with

the procedural guarantees of the federal and Texas Constitutions in a given case.”

In re Tex. House of Representatives, 702 S.W.3d 330, 338 (Tex. 2024). We have

generally held that “[d]isputes which arise over the enforcement of statutes governed

by the Texas Code of Criminal Procedure, and which arise as a result of or incident

to a criminal prosecution, are criminal law matters.” Curry v. Wilson, 853 S.W.2d

40, 43 (Tex. Crim. App. 1993). 2 1F1F

It follows that the calculation of Relator’s parole date, that (1) originates from

consecutive stacked sentences under Article 42.08 of the Code of Criminal

2
Examples of criminal matters include challenges to the assessment of attorney fees in the bill of
costs, Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011), objections to the judge
assigned to a trial court, Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 583 (Tex. Crim.
App. 1993), and matters relating to executions. See State ex rel. Holmes v. Honorable Court of
Appeals for Third Dist., 885 S.W.2d 389, 395–96 (Tex. Crim. App. 1994).
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Procedure, and (2) “arise[s] . . . incident to a criminal prosecution,” is a criminal law

matter over which this Court has mandamus authority. Id. We hold that the instant

proceeding involves a “criminal law matter.” Therefore, we have original

mandamus jurisdiction.

III. MANDAMUS RELIEF

a. Applicable Law

We have adopted a two-part test for determining whether mandamus might

issue. In re State ex rel. Ogg, 692 S.W.3d 481, 484 (Tex. Crim. App. 2024). To

obtain mandamus relief, a relator must establish that no other adequate remedy at

law is available to redress the alleged harm and that the act he seeks to compel is

ministerial, rather than discretionary, in nature. Id.

b. Adequate Remedy at Law

Respondent argues that Relator had an adequate remedy at law on habeas but

failed to timely execute it. Respondent argues that had Relator immediately

informed TDCJ or challenged the cumulation error by writ before he would have

been eligible for parole absent the error (in 2007), then the claim would have been

available via habeas because it would have been a sentence calculation error, which

is cognizable on habeas. Respondent concludes that by not availing himself of an

avenue of relief when it was available, Relator forfeited the ability to challenge the

lack of parole review.
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Generally, habeas is not a proper vehicle to address a claim regarding the

procedural requirements concerning the timing of parole reviews. Ex parte Johnson,

541 S.W.3d at 830. As we explained in Ex parte Johnson, “‘[a]ny postconviction

relief from a failure to conduct a timely parole review would have to be via

mandamus . . . assuming [the] Court has authority to issue a writ of mandamus

against the Parole Board. . . .” Id. at 830–31.

Respondent’s position would also require Relator—and others like him—to

act against their human nature. We have previously recognized that expecting an

inmate to inform the authorities that they should, in fact, be detained goes against

human nature. See Ex parte Hale, 117 S.W.3d 866, 869 (Tex. Crim. App. 2003) (“It

would require one who had requested no relief, but who had been told to leave his

place of confinement by those who confined him, to refuse to leave and demand that

he be allowed to finish serving his sentence at that time in order to ever be free from

the clutches of the law. Such conduct on the part of a prisoner would be inconsistent

with human nature as we know it.”); see also Ex parte Rowe, 277 S.W.3d 18, 19

(Tex. Crim. App. 2009). In Relator’s case, it would follow that an inmate who

realizes his sentences were erroneously calculated to his benefit would not request a

change from prison authorities that would result in serving many more years in

prison. In light of this, we hold that Relator does not have an adequate remedy at

law other than mandamus.
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c. Ministerial Duty

Section 508.150(a) of the Texas Government Code provides:

(a) If an inmate is sentenced to consecutive felony sentences under
Article 42.08, Code of Criminal Procedure, a parole panel shall
designate during each sentence the date, if any, the inmate would have
been eligible for release on parole if the inmate had been sentenced to
serve a single sentence.
(b) For the purposes of Article 42.08, Code of Criminal Procedure, the
judgment and sentence of an inmate sentenced for a felony, other than
the last sentence in a series of consecutive sentences, cease to operate:

(1) when the actual calendar time served by the inmate equals the
sentence imposed by the court; or
(2) on the date a parole panel designates as the date the inmate
would have been eligible for release on parole if the inmate had
been sentenced to serve a single sentence.

TEX. GOV’T. CODE § 508.150(a), (b).

“The ministerial-act requirement is satisfied if the relator can show a clear

right to the relief sought. A clear right to relief is shown when the facts and

circumstances dictate but one rational decision ‘under unequivocal, well-settled (i.e.,

from extant statutory, constitutional, or case law sources) and clearly controlling

legal principles.’” In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App.

2013).

Here, Section 508.150 created a mandatory duty for the Parole Board to

designate Relator’s eligibility date. See TEX. GOV’T. CODE § 508.150(a) (“a parole

panel shall designate during each sentence the date. . . .”) (emphasis added). The
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use of the word “shall” generally indicates a mandatory duty. Luquis v. State, 72

S.W.3d 355, 363 (Tex. Crim. App. 2002); see also TEX. GOV’T CODE § 311.016(2)

(providing that, under the Code Construction Act, “Shall” imposes a duty.). And,

we have already recognized as much, when we held that Section 508.150 “requires

the Board to designate a hypothetical parole release date for an inmate serving

consecutive sentences under [Article] 42.08.” Ex parte Kuester, 21 S.W.3d 264, 267

(Tex. Crim. App. 2000). And in this case, the Parole Board did not undertake its

ministerial duty, as required by law.

IV. CONCLUSION

We stress that issuing a writ of mandamus is a discretionary act that is

informed by equitable principles. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926

(CCA 1994) (citing Dickens v. Second Court of Appeals, 727 S.W.2d 542, at 549

(CCA 1987)); In re Medina, 475 S.W.3d 291, 297–98 (CCA 2015).” As Relator

here presents a timely request for relief affecting a substantial right, we will

conditionally grant the requested relief. This case is simple. The Parole Board was

required, by law, to designate the date upon which Relator would have been eligible

for release on his controlled substances conviction had he been sentenced to serve

only that sentence. But the Parole Board did not do so. So, we conditionally grant

Relator’s petition for writ of mandamus. The writ of mandamus will issue only in

the event that the Parole Board fails to comply with this opinion.
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Delivered: April 2, 2025
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