MEYERS, J., delivered this dissenting opinion.

What a difference a word makes. My reading of Code of Criminal Procedure article 11.07 4 differs from the majority's reading in the use of a single word. My interpretation is based on the legislature's choice of words used elsewhere in 4 and is consistent with this Court's reading of 4 in Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998). The majority's interpretation has no basis in 4 and is at odds with Evans.

Section 4 provides in relevant part:

If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless . . .

Evans addressed whether an initial application was a "challenge to the conviction" so as to bar a subsequent application.⁽¹⁾ The instant case raises the question of whether a subsequent application must also be a "challenge to the conviction" (as that phrase was defined in Evans) in order for the subsequent application to be barred under 4.

The majority says the subsequent application need not "challenge" the conviction; it need only "regard" the conviction in order to be barred under 4. The majority reads the following language into 4:

If a subsequent application for writ of habeas corpus regarding a conviction is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless . . .

(Emphasis on language added). The majority modifies "a conviction" addressed in the subsequent application with a term of its own choosing ("regarding"), rather than the term used to modify "the same conviction" addressed in the initial application ("challenging"). It makes more sense that the two applications (initial and subsequent) relate to the "same conviction" in the same way. Thus, I read the following language into 4:

If a subsequent application for writ of habeas corpus challenging a conviction is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless . . .

(Emphasis on language added). The legislature expressly provided that the initial application must "challeng[e] the . . . conviction." The legislature relied on its use of the word "same" to indicate that the two applications must relate to the "same convictions." Because the legislature did not provide for a term describing how the subsequent application must relate to the "same conviction" challenged by the initial application, it is most logical to assume the legislature intended that the subsequent application relate to the conviction in the same manner as the initial application--that is, it also must "challenge" the conviction. The majority reads into 4 a strange if not wholly inappropriate word, but offers no explanation for why this term was selected over another term used elsewhere in the provision in connection with the same phrase to which the majority's term applies. This is contrary to statutory construction and good sense.

In addition, the majority's view that the two applications need not both "challenge the same convictions" under 4 is contrary to our reading of 4 in Evans, supra. Our stating of the issue presented in Evans reflects that we read 4 to mean that both initial and subsequent applications "challenged" the same convictions:

[W]e must determine whether, under 4, Applicant's "initial application challeng[ed] the same conviction" as the instant application, since the initial application pertained only the Applicant's parole revocation hearing.

Evans, 964 S.W.2d at 646 (emphasis added). The plain language was obvious to the Court in Evans. While this aspect of 4 was not the issue before the Court in Evans and the Court's reading in this regard does not therefore amount to a holding in that case, it nonetheless renders the majority's "plain language" reading of the provision today questionable.

We also said in Evans that our interpretation of the phrase "challenging the conviction"

would exclude matters such as parole revocations from the ambit of 4, because a parole revocation does not call into question the validity of the prosecution or judgment; rather it questions issues arising after the completion of the prosecution.

Id. at 947 (emphasis added). This statement makes sense only if the phrase "challenging the conviction" applies to "subsequent application" as well as "initial application." If, as the majority holds, "challenging the conviction" only modifies "initial application," then Evans was far too broad in stating that our interpretation of "challenging the conviction" "would exclude matters such as parole revocations from the ambit of 4." Under the majority's opinion, matters such as parole revocation are indeed subject to the ambit of 4, if they are contained in a subsequent application. Only if they are contained in an initial application are matters such as parole revocation excluded from the ambit of 4, says the majority.

I would hold that writ applications (initial or subsequent) which "challenge the conviction" as that phrase is defined in Evans are subject to 4 and its procedural bar. Any writ applications which challenge matters that "do not call into question the validity of the prosecution or judgment" but pertain rather to "issues arising after the completion of the prosecution" are not subject to the "subsequent writ" bar of 4. Applicant's subsequent application, pertaining to time credits for a period of confinement that occurred subsequent to his conviction, is not a "challenge to the conviction" and therefore is not subject to 4. I would address the merits of the claim.

The parole division affidavit reflects applicant was arrested on January 31, 1989, for violating parole. He was released on April 3, 1989, after completing a "program" at the "Bexar County Facility" and the warrant was withdrawn. Applicant's parole was later revoked on August 18, 1989, after applicant pled guilty to another burglary. The parole division affidavit shows applicant did not get credit for the period he was confined from January 31, 1989, to April 3, 1989. Applicant is entitled to relief on his sentence. Ex parte Price, 922 S.W.2d 957 (Tex. Crim. App. 1996).

For these reasons, I dissent.

MEYERS, J.

Delivered March 1, 2000

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1. In Evans, we noted that the term "conviction" had most often been construed to mean a judgment of guilt and assessment of punishment. Applying such interpretation in the context of 4 "would exclude matters such as parole revocation from the ambit of 4 because these types of claims do not question the validity of the prosecution or judgment. Evans, 964 S.W.2d at 647.