IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40246
Summary Calendar
THOMAS BRIAN ASHCRAFT,
Plaintiff-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; HENRY B.
KEENE, Chairman, Texas Parole Board;
ALBERT SANCHEZ, Board Member, Texas
Parole Board; IRMA CAULEY, Board Member,
Texas Parole Board; DONNA GILBERT, Board
Member, Texas Parole Board; BENNIE ELMORE,
Board Member, Texas Parole Board; JOHN
ESCOBEDO, Board Member, Texas Parole Board,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CV-397
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July 31, 1996
Before REAVLEY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Thomas Brian Ashcraft, Texas prisoner #643111, appeals the
dismissal of his 42 U.S.C. § 1983 action for failure to state a
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 96-40246
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claim upon which relief may be granted under Fed. R. Civ. P.
12(b)(6). He argues that the Texas Parole Scheme of policies,
procedures, and regulations creates a liberty interest in parole
that is protected by the Due Process Clause. This court has held
that the Texas parole statute does not create a liberty interest
in parole that is protected by the Due Process Clause. See
Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v.
Kyle, 65 F.3d 29, 31-32 (5th Cir.), cert. denied, 116 S. Ct. 199
(1995); Creel v. Keene, 928 F.2d 707, 711-12 (5th Cir.), cert.
denied, 501 U.S. 1210 (1991). Ashcraft has not cited any
controlling authority to support his argument that the Texas
parole policies and regulations create a greater substantive
right or expectancy of parole than the Texas parole statute
itself. The district court did not err in dismissing Ashcraft’s
due process claim.
Ashcraft argues that the Texas Parole Board is denying a
large percentage of parole applications in order to keep the
newly built Texas prison system filled to capacity. He also
argues that the Texas parole system is generally unfair and
biased. Ashcraft’s claims are conclusional and do not state a
constitutional claim cognizable under § 1983.
Ashcraft contends that the application of the current parole
statute and regulations to him violates the Ex Post Facto Clause.
The historical and statutory notes to the Texas parole statute
indicate that generally amendments apply only to offense
No. 96-40246
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committed on or after the effective date of the act. Therefore,
Ashcraft’s parole eligibility and the frequency of his parole
hearings will be governed by the 1993 parole statute and
regulations in effect at the time he committed the instant
offense. However, even if the current law were applied to
Ashcraft, he has not shown that his parole eligibility or the
frequency of his parole hearing would be different under the
current law than they would be under the 1993 Texas parole laws.
As noted above, neither the 1993 nor the current the Texas parole
statute creates a liberty interest protected by the Due Process
clause. See Allison, 66 F.3d at 74; Orellana, 65 F.3d at 31-32;
Creel, 928 F.2d at 711-12. This court has also held that the
prior parole statute, Tex. Code Crim. P. 42.12, did not mandate
annual parole review. See Allison, 66 F.3d at 74. The current
statute does not mention the frequency of parole review hearings.
See Creel, 42 F.3d at 957. The current regulations provide only
that after a denial of parole, the Board should “set [a case] for
review on a future specific month and year.” Id. (citing Tex.
Admin. Code tit. 37 § 145.12 (1994)). Because the current law is
consistent with the law in effect when Ashcraft committed the
instant offense, he has not shown that there is an ex post facto
violation.
AFFIRMED.