59 SW3D 174 - Ex Parte Shook

KELLER, P.J.,

¶1filed a dissenting opinion

in which KEASLER and COCHRAN, J.J., joined.

¶2In a post conviction collateral attack, it is not sufficient for an applicant to allege error.1 He must also allege how the error harmed him.2

¶3Applicant alleges that the Board of Pardons and Paroles failed to give him adequate notice that he was to be considered for release to mandatory supervision. He establishes that the Board notified him that he would be considered for release on certain dates, but then made the determination to deny release before those dates. But applicant has failed to alleged any harm resulting from the Board’s early consideration of his case.

¶4In Ex parte Geiken,3 we determined that V.T.C.A. Gov’t Code § 508.147 created a liberty interest in mandatory supervision release.4 We also said that if a liberty interest is created by a statute, due process requires notice and a meaningful opportunity to be heard.5 I believe that an allegation of a lack of a meaningful opportunity to be heard is an allegation of harm. But applicant in this case was notified that his case would be considered and was provided an opportunity to be heard. Al*177though he has proven that the hearing was not when he was told it would be, he has not alleged that because of the date discrepancy his opportunity to be heard was not meaningful, e.g. that there was evidence he was prevented from presenting because of the Board’s early consideration of the case.

¶5I respectfully dissent.

¶6. See Ex Parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App.1985).

¶7. See id.

¶8. 28 S.W.3d 553 (Tex.Crim.App.2000).

¶9. Id. at 558.

¶10. Id.at 560 (citing LaChance v. Erickson, 522 U.S. 262, 266, 118 S.Ct. 753, 139 L.Ed.2d 695 (1998)).

WOMACK, J.,

¶11filed a dissenting opinion.

¶12Because I hold that the procedure of Article 11.07 of the Code of Criminal Procedure is not available for an application that does not “seek relief from a felony judgment” {id., section 1), I would dismiss this application that seeks relief from an administrative decision of the Department of Criminal Justice. See Ex parte Whiteside, 12 S.W.3d 819, 822 (Tex.Cr.App.2000) (Womack, J., concurring).