’ .
,.,
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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 Re: Application of amend-
Austin, Texas 78701 ment to Article 4.2. I2
of Texas Code of
Dear Mr. Skelton: 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 be-
came 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) ,
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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 dis-
advantage 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 pro-
hibited. ” (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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.
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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