* Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

REVISED January 23, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40083

Summary Calendar

WILLIAM JOSEPH GOODRICH

Plaintiff-Appellant

v.

BRAD LIVINGSTON; RISSIE L. OWENS

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:06-CV-156

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

William Joseph Goodrich, Texas prisoner #353147, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to

state a claim on which relief may be granted. In 1983, Goodrich was convicted

of aggravated rape, a violation of former TEX. PENAL CODE ANN. § 21.03 (Vernon

1987), and was sentenced to life imprisonment. Although § 21.03 is not listed

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-40083

1 Please note, the Parole Board’s size was reduced from eighteen to seven members

effective January 11, 2004, prior to November 2005 when Goodrich’s parole was denied. See

Tex. Gov’t Code § 508.031 (Vernon 2004). 

2

under TEX. GOV’T CODE ANN. § 508.046, Goodrich asserts that the Texas Board

of Pardons and Paroles (Parole Board) has adopted a rule making § 508.046

applicable to inmates convicted under § 21.03 as though they were convicted of

aggravated sexual assault, a violation of TEX. PENAL CODE ANN. § 22.021. He

argues that by applying § 508.046 to his 2005 parole hearing, the Parole Board

altered the definition of the crime of which he was convicted in violation of the

Ex Post Facto Clause.

The district court’s dismissal of a complaint as frivolous is reviewed for

abuse of discretion and its dismissal for failure to state a claim is reviewed de

novo. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). At the time of

Goodrich’s conviction, a prisoner needed the vote of only a majority of a

randomly-selected three-member Parole Board panel to be granted parole. See

TEX. CODE. CRIM. P. 42.12 § 14A(i) (Vernon 1979). However, under § 508.046,

effective September 1, 1997, a favorable vote of two-thirds of the entire Parole

Board was required to grant parole to certain offenders, including those

convicted of aggravated sexual assault. See § 508.046 (Vernon 2004).1

As the district court noted, the Texas Court of Criminal Appeals has held

that the Penal Code section for aggravated sexual assault, § 22.021,

encompasses the conduct previously included in the aggravated rape statutes

and that aggravated rape, § 21.03, was the statutory precursor to aggravated

sexual assault. See Griffith v. State, 116 S.W.3d 782, 787-88 (Tex. Crim. App.

2003). Accordingly, the Parole Board did not violate the Ex Post Facto Clause

by applying § 508.046 to Goodrich because it did not alter the definition of the

crime for which he was convicted nor increase his punishment. See Collins v.

Youngblood, 497 U.S. 37, 44 (1990). Furthermore, this court has determined
No. 07-40083

3

that the Parole Board’s retroactive application of § 508.046 does not violate the

Ex Post Facto Clause because it is a discretionary rule addressing a prisoner’s

“suitability, not eligibility, for parole.” See Wallace v. Quarterman, 516F.3d 351,

355-56 (5th Cir. 2008). Accordingly, the judgment of the district court is

affirmed.

MOTIONS TO SUPPLEMENT & CORRECT BRIEF GRANTED;

JUDGMENT AFFIRMED.