’ . 

,., 

r. 

THE ATTORNEY GENERAL 

OF TEXAS 

JOHN L. alI& 

AI~TIN.TEXAS 78711 

*3-rcDRNEY o-*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 of amendment to Article 4.2. I2 

of Texas Code of 

Criminal Procedure 

Your letter requesting our opinion concerns the effect of amendments 

to Article 42.12, $15 of the Texas Code of Criminal Procedure which became effective on August 28, 1967. Prior to the amendment, the section 

provided, in part: 

“The Board [of Pardons and Paroles] is hereby 

authorized to release on parole, with the approval of 

the Governor, any person confined in any penal or 

correctional institution of this State, except persons 

under sentence of death, who has served one-fourth 

of the 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 of the Governor, any person 

confined in any penal or correctional institution of 

this State, except persons under sentence of death, 

who has served one-third of the maximum sentence 

imposed. . . .‘I 

Your letter raises the question of the propriety of applying the amended 

provision to persons tried prior to the effective date of the amendment but 

sentenced thereafter. 

p. 220 
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The Honorable William H. Skelton, page 2 (H-53) , 

. . 

I 

Article 1, $ 16 of the 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 of the commission of the offense, 

in order to convict the offender. . . . ” Holt 

v. The State, 2 Tex. 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 of parole, etc., was amended 

between the time of the commission of the offense for which Lindsey was 

convicted and the time of his 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 

of any new punitive measure to a crime already 

consummated, to the detriment or material disadvantage of the wrongdoer. . . . It is for this 

reason that an increase in the possible penalty 

is ex post facto . . regardless of the length of 

the sentence actually imposed. . . . ” (301 U. S. 

at 4011 

And see annotation, increased punishment for crime, 167 ALR 845 

(1947). 

p. 221 
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The Honorable William H. Skelton, page 3 (H-53) 

. . 

In Ex parte Algeria, 464 SW. 2d 868 (Tex. Crim. 1971), Algeria 

was convicted in 1961 and 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 to the 1967 amendments to Article 

42.12 $15, a person serving a life sentence was eligible for parole 

upon accumulation of credit for 15 years. The 1967 amendment increased 

this to 20 years. After reviewing numerous decisions of the 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. 2d at 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 of the person 

convicted. It noted that application’of the amendment of Article 42.12, 

5 15, to Algeria’s sentence would require that he remain in confinement 

a greater length of time before being eligible for parole. It said: 

“Under both the federal and state constitutions, 

the retroactive application of the 1967 amendment to 

Article 42.12, 815(a), supra, to this petitioner’s life 

sentence is violative of the 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 of his conviction. ” (464 S. W. 2d 

at 874 to 875) 

It is, therefore, our opinion that with reference to the prisoner 

about whom you have inquired, his sentence is to be served pursuantto 

the terms of the Code of Criminal Procedure in existence at the time of 

the commission of the crime and not as those provisions were later 

amended. In this~ case he need only serve one-fourth of his time before, 

being eligible for parole. 

p. 222 
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. 

. 

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

SUMMARY 

The sentence to be imposed upon and the manner 

in which it is to be served by a person convicted of a 

crime is to be determined by the statutes existing at 

the time of the commission of the crime, and any effort 

to invoke statutes later enacted is the imposition of an 

ex post facto law prohibited both by the Constitution of 

the State of Texas and by the Constitution of the United 

States. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committ.ee 

p. 223