1 United States Court of Appeals,

Fifth Circuit.

No. 94-50524.

James Duke CREEL, Plaintiff-Appellant,

v.

Jack KYLE, Chairman of the Parole Board, Defendant-Appellee.

Jan. 24, 1995.

Appeal from t he United States District Court for the Western

District of Texas.

Before REAVLEY, DUHÉ and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

James Duke Creel (Creel), a prisoner at the Texas Department

of Criminal Ju s tice—Institutional Division (TDCJ), filed a 42

U.S.C. § 1983 complaint all eging that his parole review hearings

have been conducted in violation of the Ex Post Facto Clause of the

United States Constitution. The district court dismissed the

complaint as frivolous pursuant to 28 U.S.C. § 1915(d). We affirm.

FACTS

Creel was convicted of murder in October 1971, and was given

a life sentence. He became eligible for parole in 1981 and has

remained eligible for parole to the present ti me. T E X .C ODE

C RIM .P ROC .A NN

. art. 42.12 (West 1971). Creel received parole reviews

on a yearly basis between 1981 and July 1994, and parole was denied

eac h year. The parole board advised Creel in July 1994 that his

next review would be conducted in three years.

Creel also alleged in his complaint that he had been approved

for parole in 1990, but that approval was withdrawn as a result of1 The record does not reveal Creel's offense date. We assume

that there were no relevant changes in the laws between his

offense date and conviction date, and base our analysis on the

changes made between 1971 and the present.

2 protests filed by individuals who lived in the town where Creel

intended to reside upon release.

ANALYSIS

Creel argues that his right to parole review is governed by

the version of art. 42.12 that was in effect at the time of his

conviction in 1971 1

, under w hich he was entitled to annual parole

reviews. He alleges that the parole board erroneously applied art.

42.18, enacted in 1987, which is delaying his release on parole.

He believes that art. 42.18 differs from art. 42.12 in two relevant

respects. Creel alleges that the former art. 42.12 required annual

reviews while the current art. 42.18 allows the board to review

eligible inmates only once every three years. Second, art. 42.18

provides for notice of a pending parole review to more people, thus

increasing the likelihood of a protest being filed. Creel sought

an order from the district court directing the defendants to stop

applying the amended statute to him because it violated his rights

under the Ex Post Facto Clause of the United States Constitution.

TIMING OF PAROLE REVIEWS

As to the first issue, Creel is simply wrong concerning both

the old and new parole review provisions. In 1971, the pertinent

section of art. 42.12 provided:

[w]ithin one year after a prisoner's admittance to the penal

or correctional institution and at such intervals thereafter,

as it may deter mine, the [Parole] Board shall secure and

consider all pertinent information regarding each prisoner,2 Acts 1985, 69th Leg., ch. 427, § 1, deleted Art. 42.12, §§

11a to 36 without reference to the amendments of various

provisions contained therein.

3 except any under sentence of death, including th e

circumstances of his offense, his previous social history and

criminal record, his conduct, employment an d attitude in

prison, and the reports of such physical and mental

examinations as have been made. Art. 42.12, § 15(e).

The legislative history of art. 42.12 reflects t hat § 15(e)

was deleted in 1985, but it does not state that it was replaced by

art. 42.18. 2 While art. 42.18 addresses adult parole proceedings,

it makes no mention of the intervals between reviews for parole

eligible individuals.

The Texas Administrative Code currently provides that a case

reviewed by a parole panel for parole consideration may be denied

a favorable parole action and "set for review on a future specific

month and year." T E X .A DMIN .C ODE tit. 37 § 145.12 (1994). If a

parole panel receives additional information on a case denied

parole which it feels merits reconsideration prior to the scheduled

rev i ew date, the case may be brought up to date for parole

consideration and the board may resubmit it. T E X .A DMIN .C ODE tit. 37

§ 145.16 (1994).

The law in 1971 allowed the Board to review his case at

whatever intervals were determined to be appropriate by the Board.

At his most recent review, the Board gave him a three year set off

(a denial of parole with the next review date in three years).

However, if the Board re ceives information that it feels merits

reconsideration prior to that review date, his case can be brought

up early. The review provisions in the current Administrative Code3 Creel alleges in his complaint that he had been approved

for parole by two members of the Board in 1990, but that the

approval was withdrawn as a result of the protests filed by

individuals who lived in the California town where he intended to

reside upon release. He stated that he believed that these

protests were filed as a result of the victims mounting a

campaign of protests from that area.

4 are completely consistent with the statutory requirements in place

at the time Creel was convicted. The district court did not err in

dismissing this claim as frivolous.

NOTICE TO TRIAL OFFICIALS AND VICTIMS

Creel is correct in his assertion that the art. 42.18(8)(f)

requires the Board to notify more people of a pending parole review

than would have been required by law in 1971. Art. 42.18(8)(f)

replaced art. 42.12(15)(f), and added the requirement that notice

be sent to a victim that the perpetrator of the crime against him

is being considered for parole. Section 15(h) of former art. 42.12

provided that notice of parole review should be given to the

sheri ff, district attorney, and the district judge in the county

where the defendant was convicted. Although anyone can write to

the Board to support or oppose an inmate's release on parole, art.

42.18(8)(f)(2), the new law, in effect, solicits protests against

release. We assume for purposes of this analysis that Creel could

establish that the Board applied art. 42.18(8)(f) to his case 3

, and

turn our attention to the question of whether Creel's claim that

this change violated the Ex Post Facto Clause is frivolous as the

district court determined.

A law is a violation of the Ex Post Facto Claus e if it

increases the punishment for a crime after its commission. B eazell5

v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216

(1925). Creel argues that the notification of victims resulted in

a denial of early parole and therefore increased his punishment.

Under current law, as in 1971, crime victims can write protests to

the Parole Board, which are available for consideration but are not

binding on the Board. The only difference between the law in 1971

and art. 42.18(8)(f) is that a victim is now more likel y to be

aware of the timing of an inmate's parole eligibility.

The Supreme Court has held that procedural changes, even if

they work to the disadvantage of a criminal defendant, do not

violate the Ex Post Facto Clause. C ollins v. Youngblood, 497 U.S.

37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). This change is, at

most, a procedural change. The possibility that Creel's victims

might have failed to protest his release i f they had not been

contacted by the Board is "not the sort of procedural protection

that could reasonably be judged substantial from the perspective of

the defendant at the time the offense was committed." Id. at 60,

110 S.Ct. at 2729 (Stevens, J., concurring). Creel's claim that

the notification of victims of his impending parole review violated

his rights under the Ex Post Facto Clause is frivolous.

CONCLUSION

The district court's order dismissing this case as frivolous

is AFFIRMED.