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# THE ATTORNEY GENERAL OF TEXAS

**JOHN L.**  **alI&** 

### AI~TIN.TEXAS 78711 *3-rcDRNEYo-*x. June 26, 1973

The Honorable William H. Sk&on, Chairman Opinion No. H- 53 Board of Pardons and Paroles Room 501, John H. Reagan Building Austin, Texas 78701 Dear Mr. Skelton: Re: Application ofamendment toArticle 4.2.I2 of Texas Code of Criminal Procedure Your letter requesting our opinion concerns the effect ofamendments toArticle 42.12, $15 ofthe Texas Code of Criminal Procedure which became effective onAugust 28, 1967. Prior to the amendment, the section provided, inpart: “The Board [of Pardons and Paroles] is hereby

authorized to release on parole, with the approval of the Governor, any person confined inany penal or correctional institution ofthis State, except persons under sentence of death, who has served one-fourth ofthe maximum sentence imposed.
. . .” Acts 1967, 60th Legs., p. 1745, Ch. 659, greatly expanded $15 which now provides in subsection (a): “The Board is hereby authorized to release on parole with the approval ofthe Governor, any person confined inany penal or correctional institution of this State, except persons under sentence of death, who has served one-third ofthe maximum sentence imposed.
. . .‘I Your letter raises the question ofthe propriety ofapplying the amended provision to persons tried prior to the effective date ofthe amendment but sentenced thereafter.

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The Honorable William H. Skelton, page 2 (H-53) ,

**. .**  **I** Article 1, $ 16ofthe Texas Constitution provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made. ” An ex post facto law has been defined as one:

. . . which makes an act done before its passage and which was innocent when done, criminal; or which aggravates a crime and makes it greater than when committed; 01 which changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; or which alters the legal rules of evidence and receives less, or different testimony than the law required at the time ofthe commission ofthe offense, in order to convict the offender.
. . .”Holt v. The State, 2Tex. 363, 364 (1847)(em‘;;i;;;8is added) In Lindsey v. State of Washington, 301 U.S. 397, 81 L. Ed. 1182 (1937), the statute governing the conditions ofparole, etc., was amended between the time ofthe commission ofthe offense for which Lindsey was convicted and the time ofhis sentencing. He was sentenced under the new **law.** The Supreme Court held that the new law was more onerous making mandatory what before had only been a maximum sentence and said: “The Constitution forbids the application ofany new punitive measure to a crime already consummated, to the detriment or material disadvantage ofthe wrongdoer.
. . . Itis for this reason that an increase in the possible penalty is ex post facto
. . regardless ofthe length of the sentence actually imposed.
. . .” (301 U.S. at 4011 And see annotation, increased punishment for crime, 167ALR 845 (1947).

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The Honorable William H. Skelton, page 3 **(H-53)**

. . InEx parte Algeria, 464 SW. 2d 868 (Tex. Crim. 1971), Algeria was convicted in 1961and was sentenced to imprisonment for not less * than five years nor more than life under the indeterminate sentence law then in effect [Art. 775, Vernon’s Annotated Code of Criminal Procedure, (1925), now Article 42.09, Vernon’s Annotated Code of Criminal Procedure, (1965)]. Prior tothe 1967 amendments toArticle 42.12 $15, a person serving a life sentence was eligible for parole upon accumulation of credit for 15years. The 1967 amendment increased this to 20years. After reviewing numerous decisions ofthe courts and other jurisdiction, the **Court** of Criminal Appeals concluded:

“It is well settled that a legislative act increasing the sentence to be given an offender for a crime committed before the law is enacted would be ex post facto and constitutionally prohibited. ” **(464** S.W. 2dat 872) It recognized that a more complicated question was presented when the enactment did not increase the sentence but, in some other manner, altered the punishment to the detriment or disadvantage ofthe person convicted. Itnoted that application’of the amendment ofArticle 42.12, 5 15, toAlgeria’s sentence would require that he remain in confinement agreater length oftime before being eligible for parole. Itsaid: “Under both the federal and state constitutions, the retroactive application ofthe 1967 amendment to Article 42.12, 815(a), supra, to this petitioner’s life sentence is violative ofthe ex post facto principle and petitioner’s eligibility for parole is to be determined in accordance with former Article 781d. V.A. C.C. P. in effect at the time ofhis conviction. ” (464 S.W. 2d at 874 to 875) Itis, therefore, our opinion that with reference to the prisoner about whom you have inquired, his sentence is to be served pursuantto the terms ofthe Code of Criminal Procedure in existence at the time of the commission ofthe crime and not as those provisions were later amended. Inthis~case he need only serve one-fourth ofhis time before, being eligible for parole.

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. The Honorable William H. Skelton, page 4 (H-53)

SUMMARY The sentence to be imposed upon and the manner inwhich itis to be served by a person convicted ofa crime is to be determined by the **statutes** existing at the time ofthe commission ofthe crime, and any effort to invoke statutes later enacted is the imposition ofan ex post facto law prohibited both by the Constitution of the State of Texas and bythe Constitution ofthe United States. Very truly yours,

Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committ.ee

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