Untitled Texas Attorney General Opinion

Hoh. Pat Bullock Opinion No. M-100 Chairman Board of Pardons and Paroles Re: Construction of that Austin, Texas portion of S.B. 145, 60th Legislature, relating to the amend- ment of Article 42-12, Section 15, Vernon's Cde of Criminal Pro- Dear Mr.Bullock: cedure. .'Youhave requested our opinion as to'the construction.of the amendment of Section 15 of Article 42.12, Vernon's Code of Criminal Procedure, by S.B. 145, 60th Legislature. In substance, your questions are directed to what effect the amendment has in reference to the time persons confined in any penal or correctional institution of this State are eli- gible for parole. Before Section 15 of Article 42-12 was amended ft con- sisted of six paragraphs, which were not numbered or lettered for identification. Only thenwording of the first paragraph was changed, as the other ffve paragraphs were re-enacted in fdentfcal language., For identification the sfx paragraphs were lettered (a), (b), (c), (d), (e) and (f). Before the amendment of the first paragraph /?iowparagraph (a179 ft read as follows: "Set, 15. The Board Board of Pardons and Paroles7 fs hereby authorrzed to release on parole, with tTieapproval of the Governor, any person con- fined 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, provided that fn any case he may be paroled after serving fifteen years, Time served shall be a total calendar time served and all credits allowed under the laws governing the operation of the Department of Correctfons, and executfve clemency, All paroles shall fssue upon~order of the Board8 duly adopted and ap- proved by the Governor. ,s450- Hon. Pat Bullock, Page 2 (M-100) By virtue of the amendment In question paragraph (a) now reads as follows: “SectSon 15. (a) The Board is hereby author- lzed to release on parole, with the approval of the Governor, any person confined In any penal or cor- rectional Institution of this State, except persons under sentence of death, who ha@ served one-third of the maximum sentence imposed, provided that in any case he may be paroled after serving 20 calen- dar years. Time served on the sentence imposed shall be the total calendar time served and all credits allowed under the laws governing the operation of the Department of Corrections, and executive clemency. All parolee shall issue upon order of,,theBoard, duly adopted and approved by the Governor. The only change made in the first sentence of said para- graph was the substitution of the word “one-third” in lieu of the word “one-fourth”, and the substitution of the words “20 calendar years” in lieu of the words, “fifteen years.” The only change made in the second sentence was the substi- tution of the words, “on the sentence imposed shall be the total calendar time served” fn lfeu of the words, “shall be a total calendar time served.’ The third and last sen- tence was not changed by the amendment. The changing of the verbiage of safd~first sentence re- quires a person eonffned in the State Penal and Correctional Institutions to serve one-thlrd:of the maximum sentence im- posed (Instead of one-fourth thereof) to be eligible for parole.n The adding of the word “calendar” before the word years9 in our opinion adds nothing to the meaning of the first sentence, as a year is composed of 365 days and a calendar year means a duration of time equal to 365 days. A leap year is a “calendar year”, notwithstanding that a leap iear has,366 da s. ExeParte Johnson, 53 A&. 161, 87 Pac. 2d 107 (1939T D We hold that the mere insertion by the Legislature of the word “‘calentiar”‘e&ore Y?k wWr% “.j%%Yrr In the statute did not have the effect of changing Its legal meaning, particularly in vfew of the fact that the Legisla- ture In the sentence immediately following reenacted wfth- out change the same provision for computation of time for parole as had obtained in the past. ‘Year” or “calendar year have the same legal meaning. Ex Parte Neisler, 126 . . Hon. Pat Bullock, Page 3 (M-100) Tex.Cr. R. 26, 69 S.W. 2d 422 (1934); Selbert v. Sally, 238 S.W. 2d 266 (1951): . _- ._ Article 23. Sects. 15 and 16, V 0C 0S 0: 86 C.J.S. 832, Time, Sect. 9.--Furthermore, change of the one clause in the second sentence cannot in any manner change the meaning of the sentence as contained In the paragraph be- fore the amendment, as both clauses, although not In the Identical verbiage, have the same meaning. It appears from a memorandum and letters submitted to us that the question has arisen as to whether this amendment will require that a person with a life sentence be confined for twenty years (exclusive of credits for good conduct, ln- dustry and obedience) prior to his being eligible for parole. To conclude that the first eentence of paragraph (a) requires a confinement of twenty calendar years, exclusive of good conduct credits, 1s to Ignore the second sentence of said paragraph. The second sentence Is a definition of the term 'time served" and includes both 'calendar time" and "all credits allowed," which clearly refers to credit for good conduct. The term "saved" appears before the word "one-thlra" and a form of the same verb, to-wit, "serving" appears before the words "twenty calendar yeare." It Is therefore evident that the definition applies equally to the one-third pro- vision and the twenty calendar year Provlslon. Therefore, such definition discloses that the Legislature Intended that good conduct credits were to be allowed under both the one- third and the twenty calendar year provisions. Furthermore, It Is an elementary rule of statutory con- struction that etatutes dealfng with the same general sub- ject, or thing or class of persons or things, are considered in pari materla though they contain no reference to one another, QQed at different times or at different and though they were parL sessions of the Laglslature. 53 Tex. Jur. 280, Statutes, Sec. 186, and cases cited. The purpose of the pari materla rule of construction Is to ascertain the legislative intent by giving effect to all laws and provisions bearing on the same subject. Id. In this connection, we have construed the amendment in zestion with Article 6184L, Vernon's Civil Statutes, which was not amended, repeaLed or modified, and which Article pro- vides for commutatlon'of time of prisoners for good conduct, industry and obedience in order to encourage prison discipline. This statute, Includes all prisoners, whether they are serving sentences for a term of years or a sentence for life. - 452 - Hon, Pat Bullock, Pa,ge4 (M-100) Prior to the enactment of Article 42,12, Section 15, by the 59th Legislature In 1965# wherein it wa,sspecifically provfded that credft ‘for ea,rnedgood time would be a,llowed for parole under the provision “after serving fffteen years,” The Adult Probatfon and Parole Law of 1947 (Article 7&b, C.C,P.> Sectfon 12) and The Adult Probation Law of 1957 (Article 781d, C.C.P.> Section 15) had provided for parole a.fterserving “fifteen years” but there wa.sno specific statu- tory provfsion or authority under these statutes for allowing credit for good time served, Yet, the departmental practice and construction was consistently followed so as to allow the same, evldentfally by virtue of Article 6184Le As early as 1943, with the enactment of Article 6184L, the Board of Par- dons and Parolesp the Office of the Covernor of Texas> and the prison authorities charged with the administration of the law, have followed such practice and construction. Since 1965, these officials have likewise uniformly so construed the sentence in Artfcle 42.12, Section 15, “Time served on the sentence imposed shall be the total calendar time served and all credits allowed under the laws governing the opera- tion of the Department of Corrections and executive clemency.” This construc~tionwas that all convicts, including those sen- tenced for life, were eligible for parole after they ha,d served the designated portion of the .maxlmum sentence, which lnclu.dedca,lenda.r tfme served and credits a,llowedfor good conduct0 It also means that a person who is given a long term in prison, and those who recefve a life sentence, will only ha,veto serve l/3 or l/4 of the sentence, or fifteen or twen,tyyears* whfchevex-is less, This construction Is evidenced In Ex Parte Anderson, 149 Tex, Cr. R, 139,~192 S.W, 2d 280 (lwb), wherein it was a.lsoheld that co&uta,tion rights earned for parole under the statute will be protected by our courts, If the statute be subject to construction, the applicable rule still obtains, both in civil and fn crimina.1cases, that penal statutes are to be strictly construed against the state and in favor of the accused or prdsoner, 53 Tex, Jur. 2d 304, Statutes, Set, 198, In add%tion, the long standing departmental prac- tice and interpretation of this statute, construed together with Article 6184L, whloh was enacted in 1943, is entitled to great weight in the courts, particularly where valuable rights, interests, OP contracts have been acquired or earned thereby. 53 Tex, Jur, 2d 259, 260-261, Statutes, Set, 177. Hon. Pat Bullock, Page 5.’ (M-100) It isthere~ pertinently stated in part: “The courts will ordinarily a,doptand uphold a construction placed on a statute by an executive officer or department charged with Its adminls- tration, If the statute is ambiguous or uncertain, and If the construction so given It is reasonable. In other words> the judiciary will adhere to an executive or departmenta, construction of an am- biguous statute unless It Is clearly erroneous or unsound . . e -” In the case of TexansEmployers Ins. AssIn. v, Holmes, 196 S.W. 2d 390, 145 Tex. 1% (194b), the court st?ated: “The Legislature Is presumed to have known the construction given this statute by the Industrla.1 Accident Board and the courts, and by thus amending the statute a.tIntervals in the manner above stated, the Legislature endorsed the construction thereto- fore given the sta,tute,by the Industria~lAccident Board. Also, by the adoption of the Revised Civil Statutes of 1925 the Legislature left no doubt about its construction of this Act when It re-enacted Section 12 without cha,nge,after its construction by the Industrial Accident Board a,ndthe refusal of a writ of error by this Court in the Ferguson case. The construction given an original Act should be rega,rdedas havfng been brought forward in amend- ments to the Act, If the a,mendmentshave not obviously changed such construction, and the construction to be given a re-enacted statute should be the same a,sthat given to the original Act, and,a different construction will be given only for impelling reasons.’ This rule Is also followed In the recent Supreme Court case of Humble 011 and Refining Co. v. Calvert, 414 S.W, 2d 172 (1967). Since 1943, the Legislature has met eleven times in regular sessions twice amending the statute (1945 and 1949) without making any change in language concerning the computation of time served rendering a person eligible for parole. Not only did the Legislature have actual knowledge of the departmental practice when in 1965 it specifically adopted it and wrote , A Hon. Pat Bullock, Page 6 (M-100) It into Article 42,12, Section 15, but also under the settled canons of construction, the Legislature is presumed to have acquiesced in such construction and departmental practice in falling to change the statute in a manner clearly disallowing good time served for parole ellglbllity. 53 Tex. Jur, ?a 265, Sta,tutes,Set, 178. Based on the above, we are of the opinion that the recent a,mendmentto the first paragra.phof Section 15 of Article 42.12 provided that a,convict would be eligible for parole after ser- ving one-third of his sentence or twent yea,rsless time al- lowed for good conduct under Article 61ii 4L. Had.the Leglsla,ture intended that persons serving life sentences would not be en- titled to credit for good conduct, it would surely have so provided by clear and explicit language, SUMMARY In view of the necessity of construction of Senate Bill 145, 60th Legislature, in amending Section 15 of Article 42.12, Vernon's Code of Crimlna,lProcedure, and the pa.stdepa.rtmental Interpretation or construction, the Legisla,ture made only two changes in the parole law, viz., that convicts would not be eligible for parole until they ha,veserved one-third of the maxi- mum sentence imposed or twenty years, less time allowed for good conduct. J@y truly yours, C, MARTIN rney General of Texas Prepared by Robert E, Owen Assistant Attorney General APPROVED: OPINION COMMITTEE . Hawthorne Phflllps, Chafrman Kerns B, Taylor, Co-Chairman W, V. Geppert Robert Darden Monroe Clayton Harold Kennedy STAFF LEGAL ASSISTANT A. J. Ca.rubbi,Jr, = 455 -