Texas Discretionary Mandatory Supervision and “Short way” explained

 Posted on December 14, 2019 in Post Conviction

I get calls on a regular basis from families asking questions about their loved one’s “short way” release date. The family doesn’t really know what the guy is talking about, and so they ring me up. Here’s a breakdown of what the inmate means, and the legal realities all inmates face as they work to get out of prison as quickly as possible.

“Short way” used to be slang for “mandatory supervision.” Prior to 1996, the Government Code authorized the Texas Board of Pardons and Parole to release certain categories of inmates automatically when their calendar time and good conduct time equalled the full term of the prison sentence. Inmates and their families could rely on the “short way” release date and plan accordingly.

But the law changed after 1996 as the Texas Legislature became uncomfortable with automatic release. For inmates incarcerated after the new law went into effect, release was no longer “mandatory” when their good time and calendar time equalled their sentence. Instead, the parole board could deny release if:

“(1) the inmate’s accrued good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation; and

(2) the inmates release would endanger the public.”

Texas Government Code Section 508.149(b).

They gave this statutory provision the contradictory title of “discretionary mandatory release.” Only the combination of a state legislature and a large bureaucracy could come up with a term like that! TDC and the Parole Boards have shortened the term to the acronym “DMS.”

But getting back to the specifics of the law itself:

The statute is actually framed in a way that assumes an inmate would get released . . . UNLESS the two factors listed above are found true by the Board. This drafting structure gives the impression that, unlike in normal parole eligibility determinations, discretionary mandatory supervision favors or encourages the inmates release.

At first blush, there appears to be some truth to this assumption.

Most recent Texas Board of Pardons and Parole statistics show that approximately 33% of inmates get approved for release when under normal parole review, and that almost 48% of inmates get released when considered under DMS.

So you’ve got a one-out-of-three chance to get released under normal parole review, and just less than a coin toss of a chance to get released under DMS. That’s a real difference.

But many inmates assume their DMS, or “short way” release date, is close to a foregone conclusion. Obviously that’s not true. The parole boards are empowered to keep you incarcerated. And their statutory authority to do so is so broad — e.g. your release would “endanger the public” — that it’s impossible to say that the board’s level of discretion is any less than under normal parole review.

In fact, the percentage difference between your chance of release on normal parole review and DMS can probably be explained by the fact that DMS is only available to inmates not convicted of aggravated “3(g)” offenses. The 3(g) offenses are:

• Murder
• Capital murder
• Aggravated kidnapping
• Human trafficking
• Indecency with a child
• Sexual assault
• Aggravated sexual assault
• Injury to a child, elderly, or disabled individual (if the offense meets statutory requirements of a first-degree offense)
• Aggravated robbery
• Burglary of a habitation to commit a felony other than theft
• Compelling prostitution of a minor by force, threat, or fraud
• Criminal solicitation of a first-degree felony
• Sexual performance by a child
• Drug offenses involving the use of a child, and
• Any felony in which a deadly weapon was used before, during, or after the crime.

Since normal parole review includes many violent offenders, it makes sense that the release percentages are lower.

In summary, if you have an incarcerated family member talking to you about a “short way” release date, please be mindful that:

1. What he’s talking about is projected release to DMS (discretionary mandatory supervision); and
2. While he may think his release on that projected date is a foregone conclusion, TDC statistics should tell you that his actual chance of release is less than 1 in 2.

The best thing to do is not take the release date for granted, carefully create a parole brief that explains your loved one’s criminal history (or highlights his lack of a criminal history), address the TDC Risk Assessment Profile created for your loved one, and make an argument for release based on your loved one’s probable future success, not his past mistakes.