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DAN MORALES Al-KmNEY GENERAL September 241991

Honorable Allen Hightower Chnmittee on Corrections Texas House ofRepresentatives P.O. Box2910 Austin, Texas 78768-2910

Dear Representative Hightower: Opinion No. DM- 45 Re: Whether the amendment ‘toarticle 42.18 of the Code of Criminal Procedure regarding the mandatory time that inmates must serve prior to eligibility forparole isretroactive (RQ-65)

Your question references amendments to the Code of Criminal Procedure adopted by the 70th Legislature. Specifically, section 8(b) of article 42.18 of the Code ofCriminal Procedure was amended to reduce the time necessary to be served before parole eligibility for certain prisoners. Acts 1987,70th Leg., ch. 384, 0 5, at 1889. You ask whether this change applies only to inmates convicted after the effective date ofthe amendment. We conclude it does not. We first consider whether any constitutional provision bars the retroactive application ~ofarticle 42.18, section 8(b). The federal Constitution forbids the enactment ofa lawwhich imposes apunishment for an act whichwasnot punishable at the time it was committed or imposes additional punishment to that previously prescribed. U.S. Const. art. I, 8 9,cl. 3; id 9 10,cl. 1. Laws affecting eligibility for early release are subject to’the erpost fhcro prohibition ofthe federal constitution. Weaverv.Gmham, 450U.S.24 (1981). A lawisimpermissible ifit

substantially alters the consequences attached to a crime already completed, and therefore changes ‘the quantum of punishment.’ Id at 33, citingDobbert v.Floridu, 432U.S. 282,293-94 (1977). Under the federal er postfact doctrine, a retrospective penal law can only be constitutionally applied to

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aprisoner ifit isnot to his detriment. Id. The Texas Constitution also prohibits erpostfucto laws. Article I, section 16, ofthe Texas Constitution reads as follows:

No bill of attainder, ex post facto law, retroactive law, or any lawimpairing the obligation ofcontracts, shallbe made. This provision goes further than the federal Constitution in that itsprohibition is not limited to retroactive penal laws,but extends to any retroactive law. In an early case interpreting the meaning of the prohibition against retroactive laws in article I, section 16,the Texas Supreme Court stated:

The making of it evidences an intention to place a further restriction on the power ofthe legislature; and it must be held to protect every right, although not strictly a right to property, which may accrue under existing laws prior to the passage of any, which, if permitted a retroactive effect, would take away the right. A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured bylaw. Mellinger v. City ofHouston, 3 S.W.249,253 (Tex. 1887). In Turbeville v. Gowdy, 272 S.W.559,561 (Tex. Civ.App.-- Fort Worth 1925,no writ), the court stated:

A statute is retroactive which takes away or impairs vested rights acquired under existinglaws,or creates a new obligation, imposes a new duty, or adopts a new disability in respect to transactions or considerations already passed. We do not think the restriction on the power of the legislature found in article I, section 16,ofthe Texas Constitution is intended to limit the application of legislation where no detriment or impairment of a right ensues. Thus, we conclude that neither the Constitution of the United States nor that of Texas prohibits the application of section 8(b) to inmates convicted of offenses committed before its effective date.

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This conclusion tkds support in the amendments to the Code of Criminal Procedure enacted by the 70th Legislature. Certain provisions of the 1987 amendments to the Code of Criminal Procedure, which may operate to increase punishment to prisoners, are expressly limited to prisoners convicted of crimes committed after the effective date ofthe amendment. SeeActs 1987,7Oth Leg., ch. 384, 897 - 9,at 189-91; Acts 1987,7OthLeg.,ch. 1101,$5 18, 19,at 3767-68. These

. limitations are necessary to avotd impermissible expost facto effects. No such limitation was made to the effect of the amendments to section 8(b)(l) of article 42.18 which reduce the time a prisoner must serve before becoming eligible for parole.In an article published in the South Texas Law Review, Professor John M. S&mole&y of St. Mary’sUniversity School ofLaw discussed the application ofthe amendments to section 8(b):

It appears that only one of the major amendments by the Seventieth Legislature discussed in this article would apply retroactively: the change in parole eligibility from one-third oft the sentence imposed or twenty years to one-fourth of the sentence imposed or fifteen years. Because this enactment is beneficial to inmates, it is not subject to the ex post facto doctrine. Furthermore, the legislature apparently intended retroactive application because the statute contains no provision that the earlier parole eligibility date should only apply to inmates after the effective date ofthe Act, and several other amendments are expressly designated~for prospective application. Thus, it appears that the immediate impact ofthe amendments of the Seventieth Legislature discussed in this article willbe the availability ofan earlier release from custody for many members ofthe present prison population despite the apparently more punitive thrust ofmuch ofthe legislation. S&mole&y, Time Changes: Growing Complerity in Texas Sentencing Law, 30 S. TEX.L.REV.283,299-300 (1989) (Ex Post Facto Doctrine). We agree with Professor Schmolesky’sconclusion with respect to the change in the time required to be served before parole eligibility. Because its effect is not

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detrimental to the affected prisoners, it runs afoul of neither the ex post facto doctrine nor the restriction against retroactive laws found in article I, section 16,of the Texas Constitution. This change applies to prisoners without respect to the time ofthe commission ofthe crime or the date ofconviction. 

### SUMMqBY The effect of the 1987 amendments to article 42.18, section 8(b), of the Code of Criminal Procedure reducing the time prisoners must serve before becoming eligible for parole is not limited with respect to the time the crime was committed or the date ofconviction. Very truly yours,

DAN MORALES Attorney General ofTexas WILLPRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEA HICKS SpecialAssistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byJohn Steiner Assistant Attorney General

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