     Case: 08-51310     Document: 00511007469          Page: 1    Date Filed: 01/19/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 19, 2010

                                     No. 08-51310                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



GREGORY LAWRENCE MOORE

                                                   Plaintiff-Appellant
v.

RISSIE L. OWENS; JOSÉ ALISEDA; CHARLES AYCOCK; JACKIE
DONOYELLES; LINDA GARCIA; JUANITA M. GONZÁLEZ; ELVIS
HIGHTOWER; PAMELA D. FREEMAN; JANE DOES, All Future Members
and Commissioners of the Texas Board of Pardons and Paroles; JOHN DOES,
All Future Members and Commissioners of the Texas Board of Pardons and
Paroles

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:05-CV-00418


Before BENAVIDES, PRADO, SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Appellant Gregory Lawrence Moore appeals from the dismissal of his suit
under 42 U.S.C. § 1983 asserting that Appellee members of the Texas Board of
Pardons and Paroles (the “Parole Board”) determined his parole eligibility using

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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rules that violate the Ex Post Facto Clause of the U.S. Constitution. We find no
ex post facto violation and affirm the district court.
                                              A.
       Moore is an inmate currently being held at Michael Unit, a Texas
correctional facility in Tennessee Colony, Texas. He is serving a 20-year
sentence under Tex. Penal Code § 38.10 for failure to appear in accordance
with the terms of his release from custody. He has also been sentenced to
serve a 30-year sentence under Tex. Penal Code § 22.021 for aggravated
sexual assault of a child.
       Moore filed this suit pro se and in forma pauperis in 2005, alleging that
the Parole Board violated a number of his constitutional rights in reviewing
his eligibility for release on parole. The district court eventually dismissed all
of Moore’s claims under Rule 12(b)(6). On appeal, in 2007 we affirmed the
district court in part, but remanded for a determination of whether the rules
used by the Parole Board to calculate Moore’s eligibility for parole on his
consecutive sentences violated the Ex Post Facto Clause. On remand, the
district court concluded that the rules applied to Moore’s sentences did not
violate the Clause, and dismissed this case for failure to state a claim. The
only issue before us on appeal is whether the rules used to calculate Moore’s
eligibility for parole on his consecutive sentences violate the Ex Post Facto
Clause.1


       1
          In his briefing, Moore makes several allegations that could be construed as being
additional claims. First, Moore alleges that Appellants are forcing him to serve both of his
sentences twice, in violation of his constitutional rights. Second, Moore asserts that Texas has
been following an informal, unpublished policy severely restricting the release of inmates on
parole. He alleges that Texas adopted this policy in order to gain funding from the federal
government under the Violent Offender Incarceration and Truth-in-Sentencing program
(“VOI/TIS”). He claims that several policies and statutory provisions regarding parole
eligibility have been modified with the goal of winning VOI/TIS funding and suggests that
these changes have been enforced retroactively, violating the Ex Post Facto Clause.
        In 2007, when we reversed the district court’s dismissal of this case, the only claim we

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                                              B.
       “We review the district court’s conclusion that the plaintiff failed to
state a claim on which relief may be granted de novo.” Jones v. Greninger,
188 F.3d 322, 324 (5th Cir. 1999) (per curiam). “[W]e will accept all
well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” Id.
                                              I.
       In 1987, the Texas Legislature changed the manner in which parole
eligibility is calculated for inmates serving consecutive sentences. Before
1987, if an inmate were serving consecutive sentences, these sentences were
added together for parole determinations. Since 1987, Texas law has
provided that “[a] parole panel may not . . . consider consecutive sentences as
a single sentence for purposes of parole.” Tex. Gov’t Code Ann. § 508.150(c)(1)
(Vernon 2004); see also Act of June 19, 1987, ch. 1101, 1987 Tex. Gen. Laws
3750, 3755; Ex parte Wickware, 853 S.W.2d 571, 573 (Tex. Crim. App. 1993).
Initially, the Texas Department of Criminal Justice (“TDCJ”) interpreted this
change as having no practical effect on its parole determinations, as it
concluded that the date of eligibility for release on parole would be “the same
under either method of calculation.” Wickware, 853 S.W.2d at 573.
Apparently, TDCJ interpreted the law to provide that once an inmate became
statutorily eligible for parole on his or her first sentence, he or she would
automatically begin serving his or her second sentence. Id. at 573 n.1.2


remanded for further consideration was whether the rules governing Moore’s eligibility for
parole on his consecutive sentences violated the Ex Post Facto Clause. Consequently, none
of these additional claims are properly before us on appeal and we do not address them, except
to the extent that they are relevant to Moore’s sole remaining ex post facto claim.
       2
          If an inmate automatically begins serving his or her second sentence upon statutory
eligibility for parole on the first, then calculating eligibility for parole separately on both
sentences would have no impact on the ultimate date of eligibility for release. For example,
if two four-year sentences were treated as a single eight year sentence, an inmate could

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Consequently, after 1987 the TDCJ effectively continued to aggregate
consecutive sentences into a single sentence for the purposes of calculating
parole eligibility.
       However, the TDCJ’s interpretation of Tex. Gov’t Code Ann. § 508.150
was incorrect.3 Since 1987, section 508.150(b) has provided that a first
sentence does not cease to operate and thereby allow an inmate to earn
eligibility toward parole on a second sentence until (i) the date “when the
actual calendar time served by the inmate equals the sentence imposed by the
court” or (ii) “the date a parole panel designates as the date the inmate would
have been eligible for release on parole if the inmate had been sentenced to
serve a single sentence.” Tex. Gov’t Code Ann. § 508.150(b). As a result, the
TDCJ was in error when it allowed inmates to earn eligibility for parole on a
second sentence without a parole panel determination that the first sentence
should cease to operate. See Ex parte Kuester, 21 S.W.3d 264, 270 (Tex. Crim.
App. 2000) (concluding that a sentence only ceases to operate after “a
discretionary decision on the part of the Board that the person actually would
have been released to parole but for the second sentence”), overruled on other
grounds, Ex parte Hale, 117 S.W.3d 866, 872 n. 27 (Tex. Crim. App. 2003);
Cain v. Tex. Bd. of Pardons and Paroles, 104 S.W.3d 215, 218-19 (Tex. App.
2003) (concluding that parole boards “may decline to determine an eligibility
date [on a first sentence] and set the case for further review in the future”).
To correct this error, in 1997 “the practice of treating cumulative sentences as
a single combined sentence was discontinued in lieu of performing time


become eligible for parole after two years. If these sentences were treated separately, an
inmate would become eligible for parole on the first sentence after one year and could begin
accruing time on his or her second sentence. Then, after another year, the inmate would
become eligible for parole on the second sentence.
       3
       Before 1997, section 508.150 and other rules concerning parole were codified at Tex.
Code Crim. Proc. art. 42.18.

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calculations on each consecutive case singularly and sequentially.” Kuester,
21 S.W.3d at 265; see also Tex. Dep’t of Criminal Justice, Administrative
Directive 04.37, Consecutive Sentence Review Process 3 (1997) (“The Texas
Department of Criminal Justice and the Texas Board of Pardons and Paroles
have determined that time calculations for many consecutively-sentenced
inmates (post-1987 offenses) must be re-evaluated. Under the statute passed
in 1987, . . . each sentence in the consecutive sentence must be considered
alone and in sequence.”). Additionally, to formalize this new interpretation,
the TDCJ adopted a new regulation in 1997 mandating that “[a] parole panel
may not treat consecutive sentences as a single sentence for purposes of
parole” and that “[a] parole panel shall designate during each sentence the
date, if any, on which the prisoner would have been eligible for release on
parole if the prisoner had been sentenced to serve a single sentence.” 37 Tex.
Admin. Code § 145.4 (2009).
                                          II.
      The Ex Post Facto Clause establishes that, “No State shall . . . pass any
. . . ex post facto law . . . .” U.S. Const. art. I, § 20, cl. 1. A law violates the Ex
Post Facto Clause if it “changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed.” Carmell
v. Texas, 529 U.S. 513, 522 (2000) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386,
390 (1798)). Retroactive application of changes to statutes and regulations
governing parole determinations may sometimes violate the Clause. See
Shabazz v. Gabry, 123 F.3d 909, 915 n.12 (6th Cir. 1997).
      As noted above, Moore is currently serving a 20-year sentence for
failure to appear and has also been sentenced to serve a 30-year sentence for
aggravated sexual assault of a child. The assault occurred on June 1, 1989
and his failure to appear occurred on January 27, 1997. Both of Moore’s
crimes occurred after section 508.150 became effective in 1987, but before

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TDCJ adopted the correct interpretation of the statute. As a result, Moore
contends that his eligibility for parole should be calculated under the TDCJ’s
pre-1997 interpretation of section 508.150. The Parole Board has not done so;
instead, it has voted to deny Moore parole on his first sentence for failure to
appear, thus blocking him from beginning to earn eligibility for parole on his
second sentence.
      The Parole Board’s failure to apply its pre-1997 interpretation does not
violate the Ex Post Facto Clause. Both of Moore’s crimes occurred after 1987,
when section 508.150 came into effect, and consequently the statute is not
being applied to Moore retroactively. While 37 Tex. Admin. Code § 145.4 did
not become effective until April 7, 1997, the regulation did not alter the law;
instead, it merely restated provisions of section 508.150 that had already
been in place for a decade. Compare Tex. Gov’t Code Ann. § 508.150(a) (“[A]
parole panel shall designate during each sentence the date, if any, the inmate
would have been eligible for release on parole if the inmate had been
sentenced to serve a single sentence.”), and id. § 508.150(c)(1) (“A parole
panel may not . . . consider consecutive sentences as a single sentence for
purposes of parole.”), with 37 Tex. Admin. Code § 145.4(a) (“A parole panel
may not treat consecutive sentences as a single sentence for purposes of
parole.”), and id. § 145.4(d) (“A parole panel shall designate during each
sentence the date, if any, on which the prisoner would have been eligible for
release on parole if the prisoner had been sentenced to serve a single
sentence.”).
      However, Moore asserts that the reason the TDCJ reinterpreted section
508.150 is that Texas needed to reduce the number of Texas inmates being
released early from their sentences in order to gain federal funding under the
Violent Offender Incarceration and Truth-in-Sentencing program. Even if
this were true, there would still be no ex post facto violation, as the TDCJ

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only sought to achieve this goal by enforcing a statute that had been in place
since 1987.
                                      C.
      Since the Parole Board did not violate the Ex Post Facto Clause, we
AFFIRM the district court’s dismissal of this case.




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