* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40246

Summary Calendar

 

THOMAS BRIAN ASHCRAFT,

Plaintiff-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION; HENRY B.

KEENE, Chairman, Texas Parole Board;

ALBERT SANCHEZ, Board Member, Texas

Parole Board; IRMA CAULEY, Board Member,

Texas Parole Board; DONNA GILBERT, Board 

Member, Texas Parole Board; BENNIE ELMORE,

Board Member, Texas Parole Board; JOHN 

ESCOBEDO, Board Member, Texas Parole Board,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:95-CV-397

- - - - - - - - - -

July 31, 1996

Before REAVLEY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Thomas Brian Ashcraft, Texas prisoner #643111, appeals the

dismissal of his 42 U.S.C. § 1983 action for failure to state a
No. 96-40246

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claim upon which relief may be granted under Fed. R. Civ. P.

12(b)(6). He argues that the Texas Parole Scheme of policies,

procedures, and regulations creates a liberty interest in parole

that is protected by the Due Process Clause. This court has held

that the Texas parole statute does not create a liberty interest

in parole that is protected by the Due Process Clause. See

Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v.

Kyle, 65 F.3d 29, 31-32 (5th Cir.), cert. denied, 116 S. Ct. 199

(1995); Creel v. Keene, 928 F.2d 707, 711-12 (5th Cir.), cert.

denied, 501 U.S. 1210 (1991). Ashcraft has not cited any

controlling authority to support his argument that the Texas

parole policies and regulations create a greater substantive

right or expectancy of parole than the Texas parole statute

itself. The district court did not err in dismissing Ashcraft’s

due process claim.

Ashcraft argues that the Texas Parole Board is denying a

large percentage of parole applications in order to keep the

newly built Texas prison system filled to capacity. He also

argues that the Texas parole system is generally unfair and

biased. Ashcraft’s claims are conclusional and do not state a

constitutional claim cognizable under § 1983. 

Ashcraft contends that the application of the current parole

statute and regulations to him violates the Ex Post Facto Clause. 

The historical and statutory notes to the Texas parole statute

indicate that generally amendments apply only to offense
No. 96-40246

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committed on or after the effective date of the act. Therefore,

Ashcraft’s parole eligibility and the frequency of his parole

hearings will be governed by the 1993 parole statute and

regulations in effect at the time he committed the instant

offense. However, even if the current law were applied to

Ashcraft, he has not shown that his parole eligibility or the

frequency of his parole hearing would be different under the

current law than they would be under the 1993 Texas parole laws. 

As noted above, neither the 1993 nor the current the Texas parole

statute creates a liberty interest protected by the Due Process

clause. See Allison, 66 F.3d at 74; Orellana, 65 F.3d at 31-32;

Creel, 928 F.2d at 711-12. This court has also held that the

prior parole statute, Tex. Code Crim. P. 42.12, did not mandate

annual parole review. See Allison, 66 F.3d at 74. The current

statute does not mention the frequency of parole review hearings. 

See Creel, 42 F.3d at 957. The current regulations provide only

that after a denial of parole, the Board should “set [a case] for

review on a future specific month and year.” Id. (citing Tex.

Admin. Code tit. 37 § 145.12 (1994)). Because the current law is

consistent with the law in effect when Ashcraft committed the

instant offense, he has not shown that there is an ex post facto

violation. 

AFFIRMED.