Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAlTOX Aug;cst 31, 1984 Attorney General Supreme Couri Building Eoaorable El Franccb Lee Opinion No. JM-202 P. 0. Box 12545 Austin. TX. 78711. 2545 Chairman 51214752501 Committee on Electicns Re: Construction of House Bill Telex 91olS74-1357 Texas House of Repro sentatives No. 718 which amends article Telecopier 512/475-0258 P. 0. Box 2910 5.01 of the Election Code Austin, Texas 78;‘t 9 714 Jackson, Suite 700 Dallas. TX. 75202-4506 Dear Representative! Lee: 2141742.9944 You request a% interpretation of House Bill No. 718 of the Sixty-eighth Legislnture which amended article 5.01 of the Election 4824 Alb-artr Ave.. Suite 180 El Pap, TX. 799052793 Code to read in pertinent part: 915/533-34S4 . The foll.cwing classes of persons shall not be allowed i:o vote in this state: ‘001 Texas. Suite 700 wstc.“, TX. 77002.3111 . . . I 13/2255995 3. Pwsons while incarcerated, on parole, 905 Broadway. Suits 312 mandatory supervision. or probation as a result of Lubbock. TX. 79401.3479 a felony conviction. 808/747-5239 4. P,v:sons who have been convicted of a 4309 N. Tenth. Suite S felony, for a period ending on the fifth McAllen. TX. 79501-1685 annivers,iry of the date on which the person: 5121992.4547 (A) received a certificate of discharge by the 200 Main Plaza. Suite 4W Board ofr?ardons and Paroles; or San Antonio. TX. 78205.2797 51212254191 (B) completed a period of probation ordered by a court. (Emphasis added). An Equal Opportunilyl Affirmative Action Employer Article VI. sectf,cn 1 of the Texas Constitution disqualifies all felons from voting, subject to exceptions made by the legislature. You seek an :lnterpretation of the underlined language. You ask whether a certifiwte of discharge issued by the Texas Department of Corrections for persons sentenced prior to August 29, 1977 is the legal equivalent of discharge from the Board of Pardons and Paroles. Article 616621, V.T.C.S., provides in part: p. 888 n Ronorable El France Lee - Page 2 (JM-202) When a convict is entitled to a discharge from the State penitentially . . . the Director of the Department of Ccmrections or his Fxecut ive Assistant shall prepare and deliver to him a written discharge. . . . Article 42.12 of the Code of Criminal Procedure provides in sections 23 and 24: Sec. 23. . . . . When any parol,sd prisoner has fulfilled the obligations of his parole and has served out his term as conditiomd in the preceding paragraph, the Board shall lutke a final order of discharge and issue to the parolee a certificate of such discharge. Sec. 24. When any prisoner who has been paroled or released to mandatory supervision has complied with the rules and conditions governing his release until the end of the term to which he was sentenced, mci without a revocation of his parole or mandatcry supervision, the Board shall make a final order of discharge and issue the prisoner a certif:lcate of discharge. Prior to August 29, 1977, article 42.12 did not provide for mandatory supervision. This procedure was added by a 1977 amendment. Acts 1977. 65th Leg.. ch. 3ai’r, 12, at 925. A prisoner under maodatory supervision, like a parolel!, is released from imprisonment, but not from the legal custody of the state, for rehabilitation outside the prison walls. Code Grim. IYoc. art. 42.12, 52~. d. The eligibility requirements are different for each form of supervision. Moreover, parole is not automaticall:r granted to eligible prisoners; it is discretionary with the Bomd of Pardons and Paroles subject to statutory guidelines. -Id. I15 (e-i). In contrast, a prisoner not on parole “shall be released to mandatory supervision” by !:he board when his actual time served plus good conduct time equal the maximum sentence. Id. 115(c). See V.T.C.S. art. 6181-1 (accrual of good conduct time).The good conduct time law existing before August 29, 1977, actually commuted the sentence so that the prisoner was discharged from the Department of Corrections when good conduct time plus time served equaled the term of the sentence. See Acts 1927, 40th Leg., ch. 212, 023 (former V.T.C.S. art. 6166vrActs 1943. 48th Leg., ch. 361, at 635 (former V.T.C.S. art. 61841). Tke 1977 amendment to article 42.12 also p. 889 L Honorable El France Lee - Page 3 (m-202) repealed the former good coduct time statutes. Acts 1977. 65th Leg., ch. 347. 16. at 933. The 1977 amendment to r,rticle 42.12 provides in section 7 that [t]his Act applieE only to inmates sentenced to the Texas Departmc!rX of Corrections for an Offense committed on or after the effective date of this Act. If the mandatory supervis:lon law were imposed. on a prisoner who coamritted his crime before the August 29, 1977 effective date, he would remain under state su~lczvision at a time when prior law required his discharge from his sent,tnce. Section 7 prevents the unconstitu- tional imposition on an off’r,nder of a punishment which did not exist when he committed the trim?. -See Tex. Const. art. I, 516 (ex post facto law). Thus, someone sentencei for an offense committed prior to August 29, 1977 and not paroled ha:; received or will receive a discharge only from the Department of Corrkctions. Persons sentenced for offenses committed after August 29, L977 and subsequently placed on mandatory supervision were or will be discharged by the Board of Pardons and Paroles. Persons paroled at any time receive their certificate of discharge from the Board of ‘?ardons and Paroles. The board informs us that the Department of Corl,c,ctions issues a discharge certificate for every person who completes his sentence, and the board performs its duty to issue a discharge certificate by stamping the department’s certificate. Your question about the, “legal equivalent” of a certificate from the Board of Pardons and Psroles raises the issue of the class of persons enfranchised by ;Irticle 5.01. Does article 5.01 now enfranchise all convicted felons five years after completing their sentences or does it exclude! any felon who could not be discharged by the Board of Pardons and I,zroles because he was not paroled and not subject to mandatory supervision? You in effect ask whether section 4 of article 5.01 should be read as follows: 4. Persons rrt,o have been convicted of a felony, for a period ending on the fifth anniversary of the date on which the person: (A) received a certificate of discharge by the Board of Pardcas and Paroles [or the equivalent of such a certificate of discharge]. . . . Support for the view :hat felons discharged by the Department of Corrections are reenfranchl:;ed on the fifth anniversary of that date is to be found in the legl,elative history of House Bill No. 718. As, first introduced it did not include a section 4, but only section 3, p. 890 Bonorable El France Lee - Page 3 (a-202) repealed the former good conduct time statutes. Acts 1977, 65th Leg., ch. 347, 56. at 933. The 1977 amendment to article 42.12 provides in section 7 that [t]his Act applies only to inmates sentenced to the Texas Department of Corrections for an offense committed on or after the effective date of this Act. If the mandatory supervisi,cn law were imposed on a prisoner who committed his crime before the August 29, 1977 effective date, he would remain under state supervision at a time when prior law required his discharge from his sentence. Section 7 prevents the unconstitu- tional imposition on an offender of a punishment which did not exist when he committed the crime!. -See Tex. Const. art. I, 516 (ex post facto law). Thus, someone sentenced for an offense committed prior to August 29. 1977 and not paroled hat received or will receive a discharge only from the Department of Cor::octions. Persons sentenced for offenses committed after August 29, 1977 and subsequently placed on mandatory supervision were or will blr discharged by the Board of Pardons and Paroles. Persons paroled al: any time receive their certificate of discharge from the Board of Iardons and Paroles. The board informs us that the Department of Corre:tions issues a discharge certificate for every person who completes his sentence, and the board performs its duty to issue a discharge certificate by stamping the department’s certificate. Your question about th,r “legal equivalent” of a certificate from the Board of Pardons and I’rroles raises the issue of the class of persons enfranchised by article 5.01. Does article 5.01 now enfranchise all convicted Lslons five years after completing their sentences or does it excludr any felon who could not, be discharged by the Board of Pardons and Pit::oles because he was not paroled and not subject to mandatory supervir:ion? You in effect ask whether section 4 of article 5.01 should be rc!c,d as follows: 4. Persons who have been convicted of a felony, for 8 period ending on the fifth anniversary of thti! date on which the person: (A) received 21 certificate of discharge by the Board of Pardonr; end Paroles [or the equivalent of such a cert:.f’icate of discharge]. . . . Support for the view thnt felons discharged by the Department of Corrections are reenfranchissd on the fifth anniversary of that date is to be found in the legi~~3.ative history of House Bill No. 718. As first introduced it did not include a section 4. but only section 3, p. 890 . Rcmorable El France Lee - Page 5 (JM-202) rational basis. The only d:Lstinction between the groups is “wholly arbitrary” -- a difference Ln the official ministerial act granting discharge. There is no constitutionally justifiable basis for granting or withdrawing the franchise on this purely insubstantfal difference. Thus, the s!:r.tute must be construed to omit this difference if it is to be sil\,ed from invalidity. You also ask whether a certificate of discharge from other institutions such as a federal or sister state prison or parole board is the legal equivalent of e certificate of discharge from the Board of Pardons and Paroles. C:fnerally , courts have said that statutes regulating the right to vote should be liberally interpreted in favor of- that right. Thomas v. i?m. 212 S.W.2d 625 (Tex. 1948); Walker v. Thetford, 418 S.W.Zd 276 (Tex. Civ. App. - Austin 1967, writ ref’d n.r.e.1; Wooley v. Sterrett,, 387 S.W.2d 734 (Tex. Civ. App. - Dallas 1965, no writ); Mitchell v. -- Jones, 361 S.W.2d 224 (Tex. Civ. App. - Texarkana 1962. no writ). Moreover, relevant cases have concluded that the Texas law barring convicted felons from voting applies to persons convicted in fedeial as well as state court. -Shipherd v. See also II;lyes v. Williams, 341 F. Supp. 182 (S.D. Genera:rOpinion V-278 (1947) (prohibition against convicted felons voting applies to persons convicted in federal court). See also Hughes v. --State, 284 S.W. 952 (Tex. Grim. App. 1926) (person convicted of felony in federal court disqualified from jury service). Ilence, we conclude that felons discharged by either a federal or a sister state’s correctional institution or parole board, as well as by the Texas DeTs&rtmentof Corrections, are reenfranchised five years after that event. To conclude otherwise could subject the Act to possible invalidation under the Equal Protection Clause of the United States Constitution. SUMMARY House Bill !I.>. 718 of the Sixty-eighth Legislature, codiEied as article 5.01 of the Election Code, restores the vote to persons convicted of a fe:l,ony on the fifth anniversary of their discharge by the Texas Department of Corrections or by 3 federal or sister state prison or parole board, just like those discharged by the Texas Board of Pardons and Paroles. JIM MATTOX Attorney General of Texas i p. 892 n Roaorablc El Franc0 Lee - Page 6 (m-202) TON GREEN First Assistant Attorney Gererel DAVID R. RICHARDS Executive Assistant Attorney, General Prepared by Colin Carl Assistant Attorney General APPROVED: OPINIONCOMWTT.EE Rick Gilpin, Chairman Jon Bible Colin Carl p. 893