IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40938

RICHARD DELANEY KYLES,

Plaintiff - Appellant

v.

GERALD GARRETT; TROY FOX,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:03-CV-53

Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Richard Kyles was convicted of capital murder in 1976 and sentenced to 

life in prison. He brought the instant § 1983 action in January 2003 in the

United States District Court for the Southern District of Texas, challenging the

constitutionality of a change to Texas’s parole procedures, specifically the socalled extraordinary vote provision. At the time Kyles committed murder, in

January 1975, Texas law provided that parole decisions were to be made by

majority vote of the state parole board. TEX. CODE CRIM. PROC. ANN. art.

United States Court of Appeals

Fifth Circuit

F I L E D

October 14, 2011

Lyle W. Cayce

Clerk

 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.

Case: 10-40938 Document: 00511632880 Page: 1 Date Filed: 10/14/2011
No. 10-40938

42.12(C) § 13 (West 1974). Kyles alleges that the board at that time was

comprised of only three members. The board is currently comprised of seven

members but has included as many as eighteen in the past. In 1993, the Texas

legislature enacted the extraordinary vote provision, whereby parole decisions

for prisoners serving time for capital felonies could only be made by a two-thirds

vote of the entire parole board. TEX. CODE CRIM.PROC. ANN. art. 42.18 § 7 (West

1996). The extraordinary vote provision was made retroactive in 1995. See id. 

(legislative history notes). Kyles claims that applying the extraordinary vote

provision to his parole determinations violates the Ex Post Facto clause. He

seeks declaratory and injunctive relief. 

This case has a winding procedural history, but for our purposes the

procedural posture is simple. The district court granted summary judgment to

the defendants/appellees based on alternative holdings: (1) Kyles unsuccessfully

challenged the constitutionality of the parole procedure in state and federal

habeas corpus proceedings, and the judgments in those proceedings preclude this

§ 1983 action; and (2) Kyles’s summary judgment evidence fails to raise genuine

issues of material fact on whether the parole procedures create a sufficient risk

of enhancing his punishment.

Although there is little authority on what preclusive effect should be given

to habeas proceedings in a later civil action, the general principles of res judicata

and collateral estoppel seem to clearly bar this action. With respect to the

merits of the case, Kyles presents some summary judgment evidence, but none

that demonstrates more than a speculative and attenuated chance of enhanced

punishment. The evidence he presents does not even relate to the parole

procedure that existed at the time he committed his offense.

We find that the district court committed no reversible error in granting

summary judgment. That judgment is 

AFFIRMED.

2

Case: 10-40938 Document: 00511632880 Page: 2 Date Filed: 10/14/2011