United States Court of Appeals,
Fifth Circuit.
No. 94-50524.
James Duke CREEL, Plaintiff-Appellant,
v.
Jack KYLE, Chairman of the Parole Board, Defendant-Appellee.
Jan. 24, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before REAVLEY, DUHÉ and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
James Duke Creel (Creel), a prisoner at the Texas Department
of Criminal Justice—Institutional Division (TDCJ), filed a 42
U.S.C. § 1983 complaint alleging that his parole review hearings
have been conducted in violation of the Ex Post Facto Clause of the
United States Constitution. The district court dismissed the
complaint as frivolous pursuant to 28 U.S.C. § 1915(d). We affirm.
FACTS
Creel was convicted of murder in October 1971, and was given
a life sentence. He became eligible for parole in 1981 and has
remained eligible for parole to the present time. TEX.CODE
CRIM.PROC.ANN. art. 42.12 (West 1971). Creel received parole reviews
on a yearly basis between 1981 and July 1994, and parole was denied
each year. The parole board advised Creel in July 1994 that his
next review would be conducted in three years.
Creel also alleged in his complaint that he had been approved
for parole in 1990, but that approval was withdrawn as a result of
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protests filed by individuals who lived in the town where Creel
intended to reside upon release.
ANALYSIS
Creel argues that his right to parole review is governed by
the version of art. 42.12 that was in effect at the time of his
conviction in 19711, under which he was entitled to annual parole
reviews. He alleges that the parole board erroneously applied art.
42.18, enacted in 1987, which is delaying his release on parole.
He believes that art. 42.18 differs from art. 42.12 in two relevant
respects. Creel alleges that the former art. 42.12 required annual
reviews while the current art. 42.18 allows the board to review
eligible inmates only once every three years. Second, art. 42.18
provides for notice of a pending parole review to more people, thus
increasing the likelihood of a protest being filed. Creel sought
an order from the district court directing the defendants to stop
applying the amended statute to him because it violated his rights
under the Ex Post Facto Clause of the United States Constitution.
TIMING OF PAROLE REVIEWS
As to the first issue, Creel is simply wrong concerning both
the old and new parole review provisions. In 1971, the pertinent
section of art. 42.12 provided:
[w]ithin one year after a prisoner's admittance to the penal
or correctional institution and at such intervals thereafter,
as it may determine, the [Parole] Board shall secure and
consider all pertinent information regarding each prisoner,
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The record does not reveal Creel's offense date. We assume
that there were no relevant changes in the laws between his
offense date and conviction date, and base our analysis on the
changes made between 1971 and the present.
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except any under sentence of death, including the
circumstances of his offense, his previous social history and
criminal record, his conduct, employment and attitude in
prison, and the reports of such physical and mental
examinations as have been made. Art. 42.12, § 15(e).
The legislative history of art. 42.12 reflects that § 15(e)
was deleted in 1985, but it does not state that it was replaced by
art. 42.18.2 While art. 42.18 addresses adult parole proceedings,
it makes no mention of the intervals between reviews for parole
eligible individuals.
The Texas Administrative Code currently provides that a case
reviewed by a parole panel for parole consideration may be denied
a favorable parole action and "set for review on a future specific
month and year." TEX.ADMIN.CODE tit. 37 § 145.12 (1994). If a
parole panel receives additional information on a case denied
parole which it feels merits reconsideration prior to the scheduled
review date, the case may be brought up to date for parole
consideration and the board may resubmit it. TEX.ADMIN.CODE tit. 37
§ 145.16 (1994).
The law in 1971 allowed the Board to review his case at
whatever intervals were determined to be appropriate by the Board.
At his most recent review, the Board gave him a three year set off
(a denial of parole with the next review date in three years).
However, if the Board receives information that it feels merits
reconsideration prior to that review date, his case can be brought
up early. The review provisions in the current Administrative Code
2
Acts 1985, 69th Leg., ch. 427, § 1, deleted Art. 42.12, §§
11a to 36 without reference to the amendments of various
provisions contained therein.
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are completely consistent with the statutory requirements in place
at the time Creel was convicted. The district court did not err in
dismissing this claim as frivolous.
NOTICE TO TRIAL OFFICIALS AND VICTIMS
Creel is correct in his assertion that the art. 42.18(8)(f)
requires the Board to notify more people of a pending parole review
than would have been required by law in 1971. Art. 42.18(8)(f)
replaced art. 42.12(15)(f), and added the requirement that notice
be sent to a victim that the perpetrator of the crime against him
is being considered for parole. Section 15(h) of former art. 42.12
provided that notice of parole review should be given to the
sheriff, district attorney, and the district judge in the county
where the defendant was convicted. Although anyone can write to
the Board to support or oppose an inmate's release on parole, art.
42.18(8)(f)(2), the new law, in effect, solicits protests against
release. We assume for purposes of this analysis that Creel could
establish that the Board applied art. 42.18(8)(f) to his case3, and
turn our attention to the question of whether Creel's claim that
this change violated the Ex Post Facto Clause is frivolous as the
district court determined.
A law is a violation of the Ex Post Facto Clause if it
increases the punishment for a crime after its commission. Beazell
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Creel alleges in his complaint that he had been approved
for parole by two members of the Board in 1990, but that the
approval was withdrawn as a result of the protests filed by
individuals who lived in the California town where he intended to
reside upon release. He stated that he believed that these
protests were filed as a result of the victims mounting a
campaign of protests from that area.
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v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216
(1925). Creel argues that the notification of victims resulted in
a denial of early parole and therefore increased his punishment.
Under current law, as in 1971, crime victims can write protests to
the Parole Board, which are available for consideration but are not
binding on the Board. The only difference between the law in 1971
and art. 42.18(8)(f) is that a victim is now more likely to be
aware of the timing of an inmate's parole eligibility.
The Supreme Court has held that procedural changes, even if
they work to the disadvantage of a criminal defendant, do not
violate the Ex Post Facto Clause. Collins v. Youngblood, 497 U.S.
37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). This change is, at
most, a procedural change. The possibility that Creel's victims
might have failed to protest his release if they had not been
contacted by the Board is "not the sort of procedural protection
that could reasonably be judged substantial from the perspective of
the defendant at the time the offense was committed." Id. at 60,
110 S.Ct. at 2729 (Stevens, J., concurring). Creel's claim that
the notification of victims of his impending parole review violated
his rights under the Ex Post Facto Clause is frivolous.
CONCLUSION
The district court's order dismissing this case as frivolous
is AFFIRMED.
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