Hoh. Pat Bullock Opinion No. M-100 

Chairman 

Board of Pardons and Paroles Re: Construction of that 

Austin, Texas portion of S.B. 145, 

60th Legislature, 

relating to the amendment of Article 42-12, 

Section 15, Vernon's 

Cde of Criminal ProDear Mr.Bullock: cedure. 

.'You have requested our opinion as to'the construction. of 

the amendment of Section 15 of Article 42.12, Vernon's Code 

of Criminal Procedure, by S.B. 145, 60th Legislature. In 

substance , your questions are directed to what effect the 

amendment has in reference to the time persons confined in 

any penal or correctional institution of this State are eligible for parole. 

Before Section 15 of Article 42-12 was amended ft consisted of six paragraphs, which were not numbered or lettered 

for identification. Only then wording of the first paragraph 

was changed, as the other ffve paragraphs were re-enacted 

in fdentfcal language., For identification the sfx paragraphs 

were lettered (a), (b), (c), (d), (e) and (f). 

Before the amendment of the first paragraph /?iow paragraph 

(a179 ft read as follows: 

"Set, 15. The Board Board of Pardons and 

Paroles7 fs hereby authorrzed to release on parole, 

with tTie approval of the Governor, any person confined in any penal or correctional institution of 

this State, except persons under sentence of death, 

who has served one-fourth of the maximum sentence 

imposed, provided that fn any case he may be 

paroled after serving fifteen years, Time served 

shall be a total calendar time served and all 

credits allowed under the laws governing the 

operation of the Department of Correctfons, and 

executfve clemency, All paroles shall fssue 

upon~ order of the Board8 duly adopted and approved by the Governor. 

,s 450- 
Hon. Pat Bullock, Page 2 (M-100 ) 

By virtue of the amendment In question paragraph (a) 

now reads as follows: 

“SectSon 15. (a) The Board is hereby authorlzed to release on parole, with the approval of the 

Governor, any person confined In any penal or correctional Institution of this State, except persons 

under sentence of death, who ha@ served one-third 

of the maximum sentence imposed, provided that in 

any case he may be paroled after serving 20 calendar years. Time served on the sentence imposed shall 

be the total calendar time served and all credits 

allowed under the laws governing the operation of 

the Department of Corrections, and executive clemency. 

All parolee shall issue upon order of,,the Board, duly 

adopted and approved by the Governor. 

The only change made in the first sentence of said paragraph was the substitution of the word “one-third” in lieu 

of the word “one-fourth”, and the substitution of the words 

“20 calendar years” in lieu of the words, “fifteen years.” 

The only change made in the second sentence was the substitution of the words, “on the sentence imposed shall be the 

total calendar time served” fn lfeu of the words, “shall 

be a total calendar time served.’ The third and last sentence was not changed by the amendment. 

The changing of the verbiage of safd~ first sentence requires a person eonffned in the State Penal and Correctional 

Institutions to serve one-thlrd:of the maximum sentence imposed (Instead of one-fourth thereof) to be eligible for 

parole. n The adding of the word “calendar” before the word 

years 9 in our opinion adds nothing to the meaning of the 

first sentence, as a year is composed of 365 days and a 

calendar year means a duration of time equal to 365 days. 

A leap year is a “calendar year”, notwithstanding that a 

leap iear has, 366 da s. 

(1939 T 

ExeParte Johnson, 53 A&. 161, 

87 Pac. 2d 107 D We hold that the mere insertion by 

the Legislature of the word “‘calentiar” ‘e&ore Y?k wWr% “.j%%Yrr 

In the statute did not have the effect of changing Its legal 

meaning, particularly in vfew of the fact that the Legislature In the sentence immediately following reenacted wfthout change the same provision for computation of time for 

parole as had obtained in the past. ‘Year” or “calendar 

year have the same legal meaning. Ex Parte Neisler, 126 
. . 

Hon. Pat Bullock, Page 3 (M-100) 

Tex.Cr. R. 26, 69 S.W. 2d 422 (1934); Selbert v. Sally, 238 

S.W. 2d 266 (1951): . _- ._ Article 23. Sects. 15 and 16, V 0 C 0 S 0: 

86 C.J.S. 832, Time, Sect. 9.--Furthermore, change of the 

one clause in the second sentence cannot in any manner change 

the meaning of the sentence as contained In the paragraph before the amendment, as both clauses, although not In the 

Identical verbiage, have the same meaning. 

It appears from a memorandum and letters submitted to 

us that the question has arisen as to whether this amendment 

will require that a person with a life sentence be confined 

for twenty years (exclusive of credits for good conduct, lndustry and obedience) prior to hi s being eligible for parole. 

To conclude that the first eentence of paragraph (a) requires 

a confinement of twenty calendar years, exclusive of good 

conduct credits, 1s to Ignore the second sentence of said 

paragraph. The second sentence Is a definition of the term 

'time served" and includes both 'calendar time" and "all 

credits allowed," which clearly refers to credit for good 

conduct. The term "saved" appears before the word "one-thlra" 

and a form of the same verb, to-wit, "serving" appears before 

the words "twenty calendar yeare." It Is therefore evident 

that the definition applies equally to the one-third provision and the twenty calendar year Provlslon. Therefore, 

such definition disclose s that the Legislature Intended that 

good conduct credits were to be allowed under both the onethird and the twenty calendar year provisions. 

Furthermore, It Is an elementary rule of statutory construction that etatutes dealfng with the same general subject, or thing or class of persons or things, are considered 

in pari materla though they contain no reference to one another, 

and though they were parL QQed at different times or at different 

sessions of the Laglslature. 53 Tex. Jur. 280, Statutes, Sec. 

186, and cases cited. The purpose of the pari materla rule of 

construction Is to ascertain the legislative intent by giving 

effect to all laws and provisions bearing on the same subject. 

Id. In this connection, we have construed the amendment in 

zestion with Article 6184L, Vernon's Civil Statutes, which 

was not amended, repeaLed or modified, and which Article provides for commutatlon'of time of prisoners for good conduct, 

industry and obedience in order to encourage prison discipline. 

This statute, Includes all prisoners, whether they are serving 

sentences for a term of years or a sentence for life. 

- 452 - 
Hon, Pat Bullock, Pa,ge 4 (M-100) 

Prior to the enactment of Article 42,12, Section 15, 

by the 59th Legislature In 1965# wherein it wa,s specifically 

provfded that credft ‘for ea,rned good time would be a,llowed 

for parole under the provision “after serving fffteen years,” 

The Adult Probatfon and Parole Law of 1947 (Article 7&b, 

C.C,P. > 

(Article 

Sectfon 12) and The Adult Probation Law of 1957 

781d, C.C.P. > Section 15) had provided for parole 

a.fter serving “fifteen years” but there wa.s no specific statutory provfsion or authority under these statutes for allowing 

credit for good time served, Yet, the departmental practice 

and construction was consistently followed so as to allow the 

same, evldentfally by virtue of Article 6184Le As early as 

1943, with the enactment of Article 6184L, the Board of Pardons and Parolesp the Office of the Covernor of Texas> and 

the prison authorities charged with the administration of 

the law, have followed such practice and construction. Since 

1965, these officials have likewise uniformly so construed 

the sentence in Artfcle 42.12, Section 15, “Time served on 

the sentence imposed shall be the total calendar time served 

and all credits allowed under the laws governing the operation of the Department of Corrections and executive clemency.” 

This construc~tion was that all convicts, including those sentenced for life, were eligible for parole after they ha,d 

served the designated portion of the .maxlmum sentence, which 

lnclu.ded ca,lenda.r tfme served and credits a,llowed for good 

conduct 0 It also means that a person who is given a long 

term in prison, and those who recefve a life sentence, will 

only ha,ve to serve l/3 or l/4 of the sentence, or fifteen 

or twen,ty years* whfchevex- is less, 

This construction Is evidenced In Ex Parte Anderson, 

149 Tex, Cr. R, 139,~ 192 S.W, 2d 280 (lwb), wherein it was 

a.lso held that co&uta,tion rights earned for parole under 

the statute will be protected by our courts, If the statute 

be subject to construction, the applicable rule still obtains, 

both in civil and fn crimina.1 cases, that penal statutes are 

to be strictly construed against the state and in favor of 

the accused or prdsoner, 53 Tex, Jur. 2d 304, Statutes, 

Set, 198, In add%tion, the long standing departmental practice and interpretation of this statute, construed together 

with Article 6184L, whloh was enacted in 1943, is entitled 

to great weight in the courts, particularly where valuable 

rights, interests, OP contracts have been acquired or earned 

thereby. 53 Tex, Jur, 2d 259, 260-261, Statutes, Set, 177. 
Hon. Pat Bullock, Page 5.’ (M-100) 

It isthere~ pertinently stated in part: 

“The courts will ordinarily a,dopt and uphold 

a construction placed on a statute by an executive 

officer or department charged with Its adminlstration, If the statute is ambiguous or uncertain, 

and If the construction so given It is reasonable. 

In other words> the judiciary will adhere to an 

executive or departmenta, construction of an ambiguous statute unless It Is clearly erroneous 

or unsound . . e -” 

In the case of Texans Employers Ins. AssIn. v, Holmes, 196 

S.W. 2d 390, 145 Tex. 1% (194b), the court st?ated: 

“The Legislature Is presumed to have known the 

construction given this statute by the Industrla.1 

Accident Board and the courts, and by thus amending 

the statute a.t Intervals in the manner above stated, 

the Legislature endorsed the construction theretofore given the sta,tute, by the Industria~l Accident 

Board. Also, by the adoption of the Revised Civil 

Statutes of 1925 the Legislature left no doubt about 

its construction of this Act when It re-enacted 

Section 12 without cha,nge, after its construction 

by the Industrial Accident Board a,nd the refusal 

of a writ of error by this Court in the Ferguson 

case. The construction given an original Act should 

be rega,rded as havfng been brought forward in amendments to the Act, If the a,mendments have not obviously 

changed such construction, and the construction to be 

given a re-enacted statute should be the same a,s that 

given to the original Act, and, a different construction 

will be given only for impelling reasons.’ 

This rule Is also followed In the recent Supreme Court case of 

Humble 011 and Refining Co. v. Calvert, 414 S.W, 2d 172 (1967). 

Since 1943, the Legislature has met eleven times in regular 

sessions twice amending the statute (1945 and 1949) without 

making any change in language concerning the computation of 

time served rendering a person eligible for parole. Not only 

did the Legislature have actual knowledge of the departmental 

practice when in 1965 it specifically adopted it and wrote 
, A 

Hon. Pat Bullock, Page 6 (M-100) 

It into Article 42,12, Section 15, but also under the settled 

canons of construction, the Legislature is presumed to have 

acquiesced in such construction and departmental practice in 

falling to change the statute in a manner clearly disallowing 

good time served for parole ellglbllity. 

Sta,tutes, Set, 178. 

53 Tex. Jur, ?a 265, 

Based on the above, we are of the opinion that the recent 

a,mendment to the first paragra.ph of Section 15 of Article 42.12 

provided that a, convict would be eligible for parole after serving one-third of his sentence or twent yea,rs less time allowed for good conduct under Article 61 ii 4L. Had. the Leglsla,ture 

intended that persons serving life sentences would not be entitled to credit for good conduct, it would surely have so 

provided by clear and explicit language, 

SUMMARY 

In view of the necessity of construction of 

Senate Bill 145, 60th Legislature, in amending 

Section 15 of Article 42.12, Vernon's Code of 

Crimlna,l Procedure, and the pa.st depa.rtmental 

Interpretation or construction, the Legisla,ture 

made only two changes in the parole law, viz., 

that convicts would not be eligible for parole 

until they ha,ve served one-third of the maximum sentence imposed or twenty years, less 

time allowed for good conduct. 

J@y truly yours, 

Prepared by Robert E, Owen 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phflllps, Chafrman 

Kerns B, Taylor, Co-Chairman 

W, V. Geppert 

Robert Darden 

Monroe Clayton 

Harold Kennedy 

STAFF LEGAL ASSISTANT 

A. J. Ca.rubbi, Jr, 

= 455 - 

C, MARTIN 

rney General of Texas 

.