MARK WHITE 

Attorney General 

The Attorney General of Texas 

April 29, 1981 

Honorable Oscar H. Mauzy 

Chairman 

Senate Committee on Jurisprudence 

Texas Senate, State Capitol 

Opinion No. Pm-330 

Re: Whether trial judge may constitutionallv instruct jurors about 

Austin, Texas 78711 the possi&e effects of good 

conduct time and parole time 

Dear Senator Mauzy: 

You have requested our opinion as to whether a trial judge may 

constitutionally instruct jurors about the possible effects upon a prisoner’s 

sentence of parole and good conduct time. We sssume that your question 

refers to proposed legislation which may permit or require such instruction, 

although you have not submitted to us any specific proposal. 

Texas law on the subiect of iurv discussion of oarole matters has lone ~“~ 

been uncertain and confused. %he Texas Co&i of Criminal ~Appeag 

acknowledged this circumstance in Heredia y.~ State, 528 S.W. 2d 847, 8 _- 

(Tex. Crim. App. 1975): 

The cases. . . establish that there has been an 

inconsistency of standards. Authority may be cited 

for a standard requiring a showing that (1) a 

misstatement of the law (2) asserted as fact (3) by 

one professing to know the law (4) which is relied 

upon by other jurors (5) who for that reason change 

their vote to a harsher punishment, before reversible 

error is shown; but likewise authority may be cited 

which would require only a showing that a statement 

on the parole law was made and it was either untrue 

or it was harmful. 

The court then discussd the “statutory foundation upon which the issue 

ultimately rests,” article 40.03 of the Code of Criminal Procedure, which 

provides that new trials in felony cases shall be granted, inter alia: 

7. Where the jury, after having retired to 

deliberate upon a case, has received other evidence; 

. . . 

8. Where, from the misconduct of the jury, the 

court is of the opinion that the defendant has not 

received a fair and impartial triaL 

p. 1061 
Honorable Oscar H. Mauzy - Page Two N-330) 

The court indicated that some previous decisions had said that jury discussion of the 

parole law violates subdivision (7) of article 40.03, in that the jury has “received other 

evidence” relating to the parole law. See Springs v. State, 268 S.W. 2d 191 (Tex. Crim. 

App. 1954). Other decisions had said that such jury discussion contravenes subdivision 

(8), by denying a defendant “a fair and impartial trial” See Mays v. State, 320 S.W. 2d 

13 (Tex. Crim. App. 1959). 

- 

The Heredia court believed that either statutory provision might be applicable to 

jury discussion the parole law. 528 SW. 2d at 852. The mere mention of the 

existence of the law is not prohibited by subdivision (7), but a misstatement of the law 

always violates that provision. & at 852-53. Under the reasoning of Heredia, a 

statute instructing the jury on the parole law would cure any problem arising under 

subdivision (7), however. Since the jury would be apprised of the parole law as part of 

its charge, discussion of it could not constitute receipt of “other evidence.” 

As to subdivision (8) of article 40.03, the Heredia court said that discussion of 

the parole law is always jury misconduct, because the parole law is not for the jury’s 

consideration. & at 853. Again, however, the mere mention of it is not sufficient to 

deprive a defendant of “a fair and impartial trial” Likewise, a discussion of the law, 

followed by an instruction that it should not be further discussed, is not violative of 

subdivision (a), provided the law is not discussed after the instruction. J&. The court 

emphasized that the “degree of misconduct” sufficient “to deny the defendant a fair 

and impartial trial must be determined upon the facts of the individual case.” Id. As 

to the particular facts of Heredia, the court concluded that, under either subd=sion 

(7) or (81, no reversible error occurred. Id. 

- 

Although the court in Heredia alluded in a footnote to a possible constitutional 

basis for the standard that it announced, 528 S.W. 2d at 853 n.4, the decision really 

rests upon the statutory language of subdivisions (7) and (8) of article 40.03. Since, 

however, the standard of subdivision (8) is that of “fair and impartial trial,” that 

statute. incorporates a constitutional basis for the prohibition against jury discussion of 

the parole law. To the extent that such discussion denies a defendant a “fair and 

impartial trial,” it contravenes article I, section 19 of the Texas Constitution, the due 

process clause, see Vogt v. Bexar County, 23 S.W. 1044, 1046 (Tex. Civ. App. 1893, writ 

rePd) and commentary to article I, section 19, at 447, and article I, section 10, which 

guarantees every criminal defendant “a speedy public trial by an impartial jury.” If 

jury discussion of the parole law is sufficient to deprive a defendant of a fair and 

impartial trial, a statute requiring instruction on that issue, which would in effect 

authorize such discussion, might, in light of Heredia, be insufficient to overcome the 

constitutional prohibition. Subsequent decisions from the court of criminal appeals, 

however, indicate that such a statute, if properly limited, might satisfy the 

constitutional standard. 

Heredia was followed three years later by Sanders v. State;580 S.W. 2d 349 (Tex 

Crim. App. 1978), in which the court found that a jury had discussed the parole law 

extensively and that the discussion had affected jury deliberations on the issue of 

whether to grant or deny probation. 580 SW. 2d at 351. By a 2-l vote, the court 

affirmed its decision in Heredia, concluding that the jury’s discussion was harmful and 

p. 1062 
Honorable Oscar H. Mauzy - Page Three @M-3301 

that it denied the defendant a “fair and impartial trial” under subdivision (8). The 

court went further, however, and articulated “the constitutional basis for the 

established rule that discussion of the parole law is always jury misconduct.” 5 at 

352. The court declared: 

It would be improper for punishment to be based on an 

expectation that clemency powers would be exercised, and it 

would be unconstitutional to attempt to delay the exercise of 

the clemency powers or to avoid the possible granting of parole 

by increasing punishment in anticipation thereof. Article II, 

Sec. 1 of the Texas Constitution provides for the separation of 

governmental powers among the three distinct departments, the 

executive, legislative, and judicial. It is well established under 

this Article that: 

‘[Al power which has been granted to one department of 

government may be exercised onlv bs that branch to the 

exclusion of thebthers. . . . And any attempt by one department 

of government to interfere with the powers of another is null 

and void.’ Ex parte Giles, Tex. Cr. App., 502 S.W. 2d 774; 

Smith v. Blackwell, Tex. Cr. App., 500 S.W. 2d 97. (Emphasis 

added) 

Clemency powers embodied in the parole system are beyond the 

reach of interference by the judicial branch, Art. IV, Sec. ll, 

Texas Const; and any action by the judicial branch to frustrate 

or delay the exercise of that power by the executive branch is 

as much of an unconstitutional interference as is an attempted 

usurpation of that power. . . . 

This is the constitutional basis for the established rule that 

discussion of the parole law is always jury misconduct. The 

issue remains, whether, in the terms of Art 40.03(8), supra, the 

misconduct here was such that ‘the court is of [the] opinion that 

the defendant has not received a fair and impartial trial’ 

5 at 351-52. 

Although the court again relied upon subdivision (8) of article 40.03, and found 

that the discussion deprived the defendant of a fair and impartial trial, it did not refer 

either to article I, section 19 or to article I, section 10 of the Texas Constitution, nor 

did it imply that the right to a fair and impartial trial is a constitutional right 

guaranteed to a defendant. Instead the court found the constitutional basis of its 

decision in article II, section 1 and article IV, section 11 provisions which relate to the 

distribution of power among the three branches of government, and would seem to be 

in no way related to a defendant’s right, constitutional or otherwise, to a fair and 

impartial triaL Nevertheless, the result of Sanders is clear: a statute which 

encouraged extensive discussion of the parole law by a jury would be deemed 

p. 1063 
Honorable Oscar H. Mauzy - Page Four (MK- 330) 

unconstitutional by the court of criminal appeals as an interference by the judicial 

branch with the clemency powers committed to the executive branch. 

Since it is only extensive discussion of the parole law and reliance by one or more 

jurors on that discussion in determining punishment that the court considers to 

contravene the constitution, it seems likely that a statute permitting or requiring the 

court to apprise the jury of the parole law would be held constitutional under the 

Sanders rationale so long as the judge admonished the jury not to discuss it. 

More than a year after the 2-l decision in Sanders, the full court, by a 5-4 

margin, overruled the state’s motion for rehearing without written opinion. Judge 

Dally, speaking for four members of the court, dissented from the decision to overrule. 

His opinion is instructive. 

Judge Dally began by summarizing the majority ruling in Sanders: “if there is 

extensive discussion of the parole law and a juror testifies that he changed his vote the 

judgment will be reversed.” 580 S.W. 2d at 356. Judge Dally noted that “the 

inconsistency mentioned in Heredia. . . has persisted since Heredia was decided.” g 

at 357. He suggested a return to the pre-Heredia test, which holds that, in order to 

demonstrate reversible error, “it must be shown that there was: 

(1) 

(2) 

(3) 

(4) 

(5) 

g 

a misstatement of the law 

asserted as a fact 

by one professing to know the law 

which is relied upon by other jurors 

who for that reason changed their vote to a harsher 

punishment.” 

If the minority view in Sanders were to be adopted by the court, virtually any 

statute either permitting or requiring the trial judge to advise the jury about the 

parole law would be acceptable, since the minority test requires initially that, in order 

to show reversible error, there must occur a misstatement of the law. Any statute 

that required instruction to the jury about the parole law would presumably require an 

accurate recitation of that law. So long as the statute did not itself require or permit 

a misstatement of the parole law, it would satisfy the minority test of Sanders. But 

- 

see Farris v. State, 535 S.W. 2d 608 (Tenn. 1976). 

- 

Since Sanders, the court of criminal appeals has rendered a number of further 

decisions regarding jury discussion of the parole law, decisions which may arguably be 

termed inconsistent. See, e.g., Nacol v. State, 590 SW. 2d 481, 486 (Tex. Crim. App. 

1979); O’Br an v. State, 591 S.W. 2d 464, 478 (Tex. Crim. App. 1979); Jones v. State, 596 

S.W. 2d -. 134, 138 Tex. Cnm. App. 1980). But neither the Heredia-Sanders test nor the 

p. 1064 
Honorable Oscar Ii. Mauzy - Page Five (MVdli-330) 

Sanders constitutional rationale has been repudiated, and we are obliged to conclude 

that the test remains operative. As a result, we believe that some version of a statute 

advising a jury about parole and good conduct time would probably be upheld as 

constitutional by the court of criminal appeals, so long as the limiting safeguard, 

discussed s, was present. 

We must note, however, two significant reservations regarding this conclusion: 

the separation of powers rationale relied on in Sanders is not logically compatible with 

this result - it ought to preclude the mere consideration of the parole law by a juror; 

and, if the dissenting view in Sanders were to prevail, no limiting safeguards would be 

required for a parole instruction statute to pass constitutional muster. 

Our consideration of your inquiry is further clouded by the Supreme Court of 

Tennessee’s 1976 decision in Farris v. State, 535 S.W. 2d 608 (Term. 1976), which you 

have asked us to discuss In that case, the court held unconstitutional a statute which 

required a trial judge to “charge the jury with respect to parole eligibility, certain 

powers and duties of the Board of Pardons and Paroles, good behavior allowances, and 

the allowance of honor time.” 535 S.W. 2d at 609. Although the court found the 

statute invalid in part because of a caption defect, it also held it to be “impermissibly 

vague and impossible to apply. ” - Id at 613. The court then noted that: 

1jl urors of reasonable or common understanding and intelligence 

are not capable of understanding the various ramifications of 

the parole system. 

g As the concurring opinion points out, the court can’t mean that the statute 

requiring trial judges to charge juries about the parole law is vague: 

its mandate to trial judges is plain enough. In my view, the 

vagueness and confusion to which Mr. Justice H,enry refers 

relates to the instructions regarding parole eligibility, etc., 

which Chapter 163 would require trial judges to give to juries 

trying felony cases. 

5 at 615. 

To complicate matters, the court also raised the fair trial issue, and, like the 

Texas Court of Criminal Appeals, it failed to refer to any constitutional basis therefor: 

Jurors should not be permitted to speculate on the length of 

sentences, discretionary parole, the accumulation of good and 

honor time and a whole conglomeration of contingent events 

which, if they come to pass at all, will come to pass in the 

future. Very heavily involved is the constitutional right of a 

defendant to a fair triaL 

This is trial ‘by guess and by golly,’ and we will not 

countenance it by upholding a statute which offends every sense 

of fairness and every precept of due process. 

p. 1065 
Honorable Oscar H. Mauzy - Page Six (m-330) 

It tends to make a jury speculate on the length of time a 

convicted defendant will be required to serve and further tends 

to breed irresponsibility on the part of jurors premised upon the 

proposition that corrective action can be taken by others at a 

later date. A greater defect in the law stems from the fact 

that jurors tend to attempt to compensate for future clemency 

by imposing harsher sentences. 

The matter of the future disposition of a convicted 

defendant is wholly and utterly foreign to his guilt and is not a 

proper consideration by a jury in determining the length of his 

sentence. 

Id. at 614. None of this discussion has any relevance to the court’s ostensible reason 

G holding the statute unconstitutional - vagueness; but it comes close to the largely 

unarticulated “fair trial” rationale of Heredia and Sanders. In our opinion, the Texas 

Court of Criminal Appeals would not adopt the reasoning of Farris which relates to 

vagueness. But the court could certainly rely on the language relating to fair trial to 

void any statute which failed to contain the limiting safeguards previously discussed. 

The present state of the law relating to the inquiry you have submitted is 

sufficiently uncertain as to preclude any confident prediction about how the court of 

criminal appeals might rule on a particular statute. We believe it is instructive to note 

that no constitutional problem appears to exist under the Federal Constitution; in any 

event, no court has even suggested that advising a jury about parole might contravene 

any portion of the United States Constitution. The court of criminal appeals has a 

choice of state constitutional doctrines, however, with some support in decisional law, 

including separation of powers, vagueness and due process, which it may rely upon to 

invalidate a statute which requires or permits a jury instruction about parole and good 

conduct time. We believe that, at present, the court would be likely to uphold such a 

statute, so long as it required the judge to admonish the jury not to discuss the subject. 

SUMMARY 

The courts would be likely to uphold a statute which 

authorizes a ju@e to instruct jurors about the possible effects 

upon a prisoner’s sentence of parole and good conduct time, so 

long as it required the judge to admonish the jury not to discuss 

the subject. 

MARK WHITE 

Attorney General of Texas 

p. 1066 
Honorable Oscar H. Mauzy - Page Seven (bw-330) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Bruce Youngblood 

p. 1067