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DAN MORALES 

Al-KmNEY GENERAL 

September 241991 

Honorable Allen Hightower 

Chnmittee on Corrections 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Dear Representative Hightower: 

Opinion No. DM- 45 

Re: Whether the amendment ‘to article 

42.18 of the Code of Criminal Procedure regarding the mandatory time that 

inmates must serve prior to eligibility 

for parole is retroactive (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 of Criminal 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 of the amendment. We conclude it does not. 

We first consider whether any constitutional provision bars the retroactive 

application ~of article 42.18, section 8(b). The federal Constitution forbids the 

enactment of a law which imposes a punishment for an act which was not 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 er post fhcro prohibition of the federal constitution. 

Weaver v. Gmham, 450 U.S. 24 (1981). A law is impermissible if it 

substantially alters the consequences attached to a crime 

already completed, and therefore changes ‘the quantum of 

punishment.’ 

Id at 33, citing Dobbert v. Floridu, 432 U.S. 282,293-94 (1977). Under the federal er 

postfact doctrine, a retrospective penal law can only be constitutionally applied to 

p. 227 
Honorable Allen Hightower - Page 2 (DM-45) 

a prisoner if it is not to his detriment. Id. 

The Texas Constitution also prohibits erpostfucto laws. Article I, section 16, 

of the Texas Constitution reads as follows: 

No bill of attainder, ex post facto law, retroactive law, or 

any law impairing the obligation of contracts, shall be made. 

This provision goes further than the federal Constitution in that its prohibition 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 of the 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 by law. 

Mellinger v. City of Houston, 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 existing laws, 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, of the 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. 

P- 228 
Honorable Allen Hightower - Page 3 (DM-45) 

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 of the amendment. See Acts 1987,7Oth Leg., ch. 

384, 89 7 - 9, at 189-91; Acts 1987,7Oth Leg., ch. 1101, $5 18, 19, at 3767-68. These 

. limitations are necessary to avotd impermissible ex post 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’s University School of Law discussed the application of the 

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 of the Act, and several 

other amendments are expressly designated~ for prospective 

application. Thus, it appears that the immediate impact of the 

amendments of the Seventieth Legislature discussed in this 

article will be the availability of an earlier release from custody 

for many members of the present prison population despite the 

apparently more punitive thrust of much of the 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’s conclusion with respect to the change 

in the time required to be served before parole eligibility. Because its effect is not 

P- 229 
Honorable Allen Hightower - Page 4 (DM-45) 

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 

of the commission of the crime or the date of conviction. 

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 of conviction. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by John Steiner 

Assistant Attorney General 

p. 230