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Creel v. Keene

April 16, 1991


Appeal from the United States District Court for the Western District of Texas. No. 90-CV-151; Walter Smith, Judge.

E. Grady Jolly, Higginbotham and Jones, Circuit Judges.

Author: Jolly

JOLLY, Circuit Judge

In 1971, James Duke Creel was convicted of murder by a Texas state court and sentenced to life imprisonment. He now appeals the district court's denial of his habeas petition, arguing that Texas Parole Board's 1990 decision to refuse him parole violated his fourteenth amendment right to due process. The district court rejected Creel's contention on the ground that the Texas parole statute afforded Creel no constitutionally protected liberty interest; we agree and thus affirm.


The circumstances surrounding Creel's offense -- set out in Creel v. State, 493 S.W.2d 814, 815-18 (1973) -- are of no moment to this appeal. The only facts we need mention are those that pertain to Creel's ongoing relationship with the Texas Parole Board.

Creel first became eligible for parole in 1981. Since then, the Board has considered him for parole fourteen times and -- on each occasion -- has denied him a premature release. Creel's most recent encounter with the Board began on April 13, 1990, when it gave him a tentative parole month of July 1990, pursuant to Tex.Code Crim.Proc. art. 42.18 § 8(a) (Vernon Supp. 1990). Less than one month later, on May 10, 1990, the Board notified Creel that he would not be released in July; according to the Board, it had obtained "additional information" indicating that Creel, if released, would "increase the likelihood of public harm."

Creel responded to the Board's 1990 decision by filing the instant petition,*fn1 his latest in a long but undistinguished line of habeas applications.*fn2 In it, Creel presented his due process argument alongside a contention that the Board's decision amounted to a Bill of Attainder. The district court denied the petition on August 15, 1990, but, pursuant to 28 U.S.C. § 1915, granted Creel probable cause to lodge this timely appeal.


Creel has chosen to drop his Bill of Attainder claim, opting instead to rest his hopes of habeas relief on his due process argument. This argument is moored in Creel's contention that 1987 amendments to the Texas parole statute, Tex.Code Crim.Proc. art. 42.18 (Vernon Supp. 1990), gave him a liberty interest in parole sufficient to bring into play the guarantees of the fourteenth amendment. Creel concedes that we addressed a similar contention in an earlier case, Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981), wherein we concluded that "the Texas Adult Probation, Parole and Mandatory Supervision Law, Tex.Code Crim.Proc. art. 42.12 (Vernon 1979), does not create that protectible expectancy of release recognized by the Supreme Court in Greenholtz [v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979)]." He insists, however, that Williams is easily distinguishable in that it antedates the 1987 amendments as well as the Court's holding in Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987), on which Creel's position rests.

We cannot further explicate this position without reproducing those 1987 amendments pertinent to Creel's claim of a liberty interest:

Article 42.18 § 8(a):

The board is authorized to release on parole any person confined in any penal or correctional institution who is eligible for parole under section (b) of this section. The board may consider a person for release on parole if the person has been sentenced to a term of imprisonment in the Texas Department of Corrections, is confined in a jail of this state, a federal correctional institution in another state, and is eligible for parole under Subsection (b) of this section. The board shall release a person on parole during the tentative parole month established for the person unless the Board determines that the person's release will increase the likelihood of harm to the public or that the person has failed to progress in the manner required by the board in Subsection (e) of this section. The department shall provide the board with sentence time credit information on persons described in this section. The period of parole shall be equivalent to the maximum term for which the prisoner was ...

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