Hoh. Pat Bullock OpinionNo. M-100

Chairman Board of Pardons and Paroles Re: Constructionof that Austin, Texas portion of S.B. 145, 60th Legislature, relating to the amendment of Article 42-12, Section 15,Vernon's Cde of CriminalProDear 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 amendmenthas in reference to the timepersons confined in any penal or correctionalinstitution of this State are eligible forparole.

Before Section 15 of Article 42-12 was amended ft consisted of sixparagraphs,which were not numbered or lettered for identification. Only then wording of the first paragraph
was changed, as the other ffveparagraphs were re-enacted in fdentfcal language., For identification the sfxparagraphs
were lettered (a), (b), (c), (d), (e)and (f).

Before the amendment of the firstparagraph /?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 institutionof this State, exceptpersons under sentenceof death, who has served one-fourth of the maximum sentence imposed,provided that fn any case he may be paroled after serving fifteenyears, Time served shall be a total calendar time served and all credits allowedunder 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 Institutionof this State, except persons under sentenceof death, who ha@ served one-third of the maximum sentence imposed, provided that in any case hemay 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 changemade in the first sentenceof said paragraph was the substitutionof the word “one-third”in lieu of the word “one-fourth”,and the substitutionof the words “20 calendaryears” in lieu of the words, “fifteenyears.” The only changemade 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 sentencerequires a person eonffned in the State Penal and Correctional Institutionsto serve one-thlrd:of the maximum sentence imposed (Insteadof one-fourth thereof) to be eligible for parole.nThe adding of the word “calendar”before the word years9 in our opinion adds nothing to the meaning of the first sentence,as a year is composedof 365 days and a calendaryear means a duration of time equal to 365 days. A leap year is a “calendaryear”, 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 insertionby the Legislatureof 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 followingreenactedwfthout change the same provision for computationof time for parole as had obtained in the past. ‘Year”or “calendar year have the same legalmeaning. Ex ParteNeisler, 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,V0 C0 S0:

._- ._ 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 paragraphbefore 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 (exclusiveof credits for good conduct, lndustry and obedience)prior to his being eligible for parole. To conclude that the first eentence of paragraph (a) requires
a confinementof twenty calendaryears, 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 'calendartime" 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 "twentycalendaryeare." It Is therefore evident that the definition applies equally to the one-third provision and the twenty calendaryear Provlslon. Therefore, such definition disclose s that the Legislature Intended that good conduct creditswere to be allowed under both the onethird and the twenty calendaryear provisions.

Furthermore, It Is an elementaryrule of statutory construction that etatutesdealfngwith the same general subject, or thing or class of persons or things,are considered inpari materla though they containno 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 legislativeintent by giving effect to all laws and provisionsbearing 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'oftime of prisoners for good conduct, industry and obedience in order to encourageprison 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,ge4 (M-100)

Prior to the enactment of Article 42,12, Section 15, by the 59th Legislature In 1965#wherein it wa,sspecifically provfded that credft‘forea,rned good time would be a,llowed for parole under the provision “after serving fffteenyears,” The Adult Probatfon and Parole Law of 1947 (Article7&b, C.C,P.> (Article

Sectfon 12) and The Adult ProbationLaw of 1957 781d, C.C.P.> Section 15) had provided for parole a.fterserving “fifteenyears” but there wa.s no specific statutory provfsion or authorityunder these statutes for allowing credit for good time served, Yet, the departmentalpractice and constructionwas consistentlyfollowed so as to allow the same, evldentfallyby 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 chargedwith the administrationof the law, have followed such practice and construction.Since 1965, these officialshave likewiseuniformly so construed the sentence in Artfcle 42.12, Section 15, “Time served on the sentence imposed shallbe the total calendar time served and all credits allowed under the laws governing the operation of the Department of Correctionsand executive clemency.” This construc~tion was that all convicts, including those sentenced for life,were eligible for parole after they ha,d served the designatedportion of the .maxlmumsentence,which lnclu.ded

ca,lenda.r

tfme served and credits a,llowed for good conduct0 It also means that a person who is given a long term in prison, and thosewho recefve a life sentence,will only ha,veto serve l/3 or l/4 of the sentence, or fifteen
or twen,ty

years* whfchevex- is less,

This constructionIs 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,tionrights earned for parole under the statutewill be protectedby our courts, If the statute be subject to construction, the applicablerule still obtains, both in civil and fn crimina.1 cases, that penal statutes are to be strictly construedagainst the state and in favor of the accused or prdsoner, 53 Tex, Jur. 2d 304, Statutes, Set, 198, In add%tion, the long standingdepartmentalpractice and interpretationof this statute, construed together with Article 6184L,whloh was enacted in 1943, is entitled to great weight in the courts, particularlywhere valuable rights, interests,OP contractshave 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 courtswill ordinarilya,dopt and uphold
a constructionplaced on a statuteby an executive officer or department chargedwith Its adminlstration, If the statute is ambiguous or uncertain, and If the construction so given It is reasonable. In other words> the judiciarywill adhere to an executive or departmenta, constructionof 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 constructiongiven this statuteby the Industrla.1 Accident Board and the courts, and by thus amending the statute a.tIntervals 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 constructionof this Act when It re-enacted Section 12 without cha,nge, after its construction by the IndustrialAccident Board a,ndthe refusal of a writ of errorby this Court in the Ferguson
case. The constructiongiven 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 shouldbe the same a,sthat given to the original Act, and, a different construction will be given only for impellingreasons.’

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 (1945and 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 practicewhen in 1965 it specificallyadopted 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 constructionand departmentalpractice 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,convictwould be eligible for parole after serving one-third of his sentence or twent yea,rsless time allowed for good conduct under Article 

### 61 ii 4L. Had.the Leglsla,ture intended that persons serving life sentenceswould 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 constructionof 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 Interpretationor construction,the Legisla,ture made only two changes in the parole law, viz., that convictswould not be eligible for parole until they ha,veserved one-third of the maximum sentence imposed or twentyyears, less time allowed for good conduct.

J@y trulyyours,

Preparedby Robert E, Owen AssistantAttorney 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

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