EX PARTE ROY ANTHONY JONES (other)

OF TEXAS

NO. WR-33,842-05

EX PARTE ROY ANTHONY JONES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F94-00145WV IN THE 291ST DISTRICT COURT

FROM DALLAS COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to sixty years imprisonment. The Third Court of Appeals affirmed his conviction. Jones v. State, No. 03-94-00564-CR (Tex. App. Austin 1996, pet. ref d).

Applicant contends that his parole review date was set-off for five years, see Tex. Gov t Code 508.141(g), and that this set-off resulted in an ex post facto violation. The trial court made findings of fact and concluded that Applicant s claim was not cognizable and that he failed to establish an ex post facto violation due to the fact that parole is a matter of grace, not a matter of right. The trial court recommended that we deny relief. We agree with the trial court s recommendation but not with its conclusions of law. Applicant s claim is cognizable in an application for a writ of habeas corpus, and although parole in Texas is discretionary, see Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. App. 2000), the presence of discretion does not displace the protections of the Ex Post Facto Clause. Garner v. Jones, 529 U.S. 244, 253 (2000); see also Weaver v. Graham, 450 U.S. 24, 30 (1981)( [A] law need not impair a vested right to violate theex post facto prohibition ). Applicant, however, does not plead sufficient facts to show that the change in parole law created a sufficient risk of increasing the measure of punishment attached to the covered crimes. California Dep t of Corrections v. Morales, 514 U.S. 499, 509 (1995). With these words, we deny relief.

Filed: January 27, 2010

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