                       The Attorney                          General of Texas

MARK WHITE                                    April          29, 1981
Attorney General
                   Honorable Oscar H. Mauzy                             Opinion No.     Pm-330
                   Chairman
                   Senate Committee    on Jurisprudence                 Re:      Whether trial judge may con-
                   Texas Senate, State Capitol                          stitutionallv    instruct    jurors about
                   Austin, Texas   78711                                the      possi&e     effects     of  good
                                                                        conduct time and parole time

                   Dear Senator      Mauzy:

                           You have requested        our opinion as to whether    a trial judge may
                   constitutionally     instruct jurors about the possible effects upon a prisoner’s
                   sentence     of parole and good conduct time.      We sssume that your question
                   refers to proposed legislation      which may permit or require such instruction,
                   although you have not submitted to us any specific proposal.

                         Texas law on the subiect of iurv discussion of oarole matters has lone
                                                      ~“~



                   been uncertain     and confused.  %he Texas Co&i of Criminal ~Appeag
                   acknowledged   this circumstance in Heredia y.~ State, 528 S.W. 2d 847, 8 _-
                   (Tex. Crim. App. 1975):

                                   The cases. . . establish       that there     has been an
                                   inconsistency  of standards.      Authority    may be cited
                                   for a standard       requiring     a showing     that (1) a
                                   misstatement    of the law (2) asserted as fact (3) by
                                   one professing    to know the law (4) which is relied
                                   upon by other jurors (5) who for that reason change
                                   their vote to a harsher punishment,       before reversible
                                   error is shown; but likewise authority         may be cited
                                   which would require only a showing that a statement
                                   on the parole law was made and it was either untrue
                                   or it was harmful.

                   The court then discussd      the “statutory   foundation  upon which the issue
                   ultimately  rests,” article 40.03 of the Code of Criminal Procedure,     which
                   provides that new trials in felony cases shall be granted, inter alia:

                                       7. Where   the jury,   after   having           retired   to
                                  deliberate upon a case, has received other           evidence;

                                  . . .

                                      8. Where, from the misconduct   of the jury, the
                                  court is of the opinion that the defendant   has not
                                  received a fair and impartial triaL

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Honorable     Oscar H. Mauzy         - Page Two          N-330)




The court indicated     that some previous decisions had said that jury discussion of the
parole law violates subdivision (7) of article 40.03, in that the jury has “received other
evidence” relating to the parole law. See Springs v. State, 268 S.W. 2d 191 (Tex. Crim.
App. 1954). Other decisions had said that such jury discussion contravenes       subdivision
(8), by denying a defendant   “a fair and impartial trial” -See Mays v. State, 320 S.W. 2d
13 (Tex. Crim. App. 1959).

        The Heredia court believed that either statutory       provision might be applicable to
jury discussion          the parole law.     528 SW. 2d at 852. The mere mention of the
existence    of the law is not prohibited by subdivision (7), but a misstatement     of the law
always violates       that provision.     & at 852-53.     Under the reasoning    of Heredia, a
statute   instructing     the jury on the parole law would cure any problem arising under
subdivision (7), however.        Since the jury would be apprised of the parole law as part of
its charge, discussion of it could not constitute     receipt of “other evidence.”

       As to subdivision     (8) of article 40.03, the Heredia court said that discussion of
the parole law is always jury misconduct,         because the parole law is not for the jury’s
consideration.     & at 853. Again, however, the mere mention of it is not sufficient            to
deprive a defendant       of “a fair and impartial trial”      Likewise, a discussion of the law,
followed by an instruction       that it should not be further discussed, is not violative of
subdivision (a), provided the law is not discussed after the instruction.            J&. The court
emphasized     that the “degree of misconduct”        sufficient   “to deny the defendant    a fair
and impartial    trial must be determined      upon the facts of the individual case.” Id. As
to the particular     facts of Heredia, the court concluded        that, under either subd=sion
(7) or (81, no reversible error occurred.     Id.
                                              -
        Although the court in Heredia alluded in a footnote                       to a possible constitutional
basis for the standard           that it announced,           528 S.W. 2d at 853 n.4, the decision really
rests upon the statutory             language of subdivisions          (7) and (8) of article 40.03. Since,
however,      the standard         of subdivision        (8) is that of “fair and impartial         trial,” that
statute. incorporates         a constitutional        basis for the prohibition against jury discussion of
the parole law.          To the extent that such discussion                 denies a defendant      a “fair and
impartial    trial,” it contravenes           article I, section 19 of the Texas Constitution,            the due
process clause, see Vogt v. Bexar County, 23 S.W. 1044, 1046 (Tex. Civ. App. 1893, writ
rePd) and commentary              to article I, section 19, at 447, and article I, section 10, which
guarantees       every criminal defendant              “a speedy public trial by an impartial jury.” If
jury discussion        of the parole law is sufficient              to deprive a defendant       of a fair and
impartial     trial, a statute         requiring     instruction    on that issue, which would in effect
authorize     such discussion,         might, in light of Heredia, be insufficient            to overcome the
constitutional       prohibition.        Subsequent       decisions from the court of criminal appeals,
however,       indicate      that such a statute,               if properly     limited,   might satisfy       the
constitutional      standard.

       Heredia was followed three years later by Sanders v. State;580      S.W. 2d 349 (Tex
Crim. App. 1978), in which the court found that a jury had discussed the parole law
extensively     and that the discussion   had affected  jury deliberations   on the issue of
whether to grant or deny probation.          580 SW. 2d at 351. By a 2-l vote, the court
affirmed    its decision in Heredia, concluding that the jury’s discussion was harmful and

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Honorable    Oscar H. Mauzy      - Page Three        @M-3301




that it denied the defendant      a “fair and impartial    trial” under subdivision (8). The
court    went further,   however,   and articulated     “the constitutional     basis for the
established  rule that discussion of the parole law is always jury misconduct.”        5   at
352. The court declared:

                 It would be improper        for punishment      to be based on an
             expectation    that clemency     powers would be exercised,           and it
             would be unconstitutional      to attempt      to delay the exercise of
             the clemency powers or to avoid the possible granting of parole
             by increasing     punishment   in anticipation     thereof.     Article II,
             Sec. 1 of the Texas Constitution        provides for the separation        of
             governmental     powers among the three distinct departments,            the
             executive,   legislative,  and judicial.    It is well established     under
             this Article that:

                 ‘[Al power which has been granted to one department            of
             government    may be exercised         onlv bs that branch to the
             exclusion of thebthers.    . . . And any attempt by one department
             of government    to interfere     with the powers of another is null
             and void.’ Ex parte Giles, Tex. Cr.          App., 502 S.W. 2d 774;
             Smith v. Blackwell, Tex. Cr. App., 500 S.W. 2d 97. (Emphasis
             added)

             Clemency powers embodied in the parole system are beyond the
             reach of interference   by the judicial branch, Art. IV, Sec. ll,
             Texas Const; and any action by the judicial branch to frustrate
             or delay the exercise of that power by the executive branch is
             as much of an unconstitutional   interference  as is an attempted
             usurpation of that power. . . .

                 This is the constitutional basis for the established  rule          that
             discussion  of the parole law is always jury misconduct.                 The
             issue remains, whether, in the terms of Art 40.03(8), supra,             the
             misconduct here was such that ‘the court is of [the] opinion            that
             the defendant has not received a fair and impartial trial’

5   at 351-52.

        Although the court again relied upon subdivision (8) of article 40.03, and found
that the discussion deprived the defendant of a fair and impartial trial, it did not refer
either to article I, section 19 or to article I, section 10 of the Texas Constitution,               nor
did it imply that the right to a fair and impartial                  trial is a constitutional     right
guaranteed      to a defendant.       Instead the court found the constitutional           basis of its
decision in article II, section 1 and article IV, section 11 provisions which relate to the
distribution    of power among the three branches of government,                and would seem to be
in no way related to a defendant’s             right, constitutional     or otherwise,   to a fair and
impartial     triaL     Nevertheless,      the result of Sanders is clear:           a statute    which
encouraged       extensive    discussion     of the parole law by a jury would be deemed

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Honorable   Oscar H. Mauzy        - Page Four        (MK-330)




unconstitutional by the court of criminal appeals as an interference                    by the judicial
branch with the clemency powers committed  to the executive branch.

       Since it is only extensive discussion of the parole law and reliance by one or more
jurors on that discussion        in determining    punishment    that the court   considers  to
contravene   the constitution,     it seems likely that a statute permitting  or requiring the
court to apprise the jury of the parole law would be held constitutional             under the
Sanders rationale so long as the judge admonished the jury not to discuss it.

       More than a year after the 2-l decision in Sanders, the full court, by a 5-4
margin, overruled      the state’s motion for rehearing without written opinion.  Judge
Dally, speaking for four members of the court, dissented from the decision to overrule.
His opinion is instructive.

       Judge Dally began by summarizing          the majority    ruling in Sanders: “if there is
extensive discussion of the parole law and a juror testifies that he changed his vote the
judgment      will be reversed.”      580 S.W. 2d at 356.         Judge Dally noted that “the
inconsistency      mentioned   in Heredia. . . has persisted since Heredia was decided.”      g
at 357. He suggested         a return to the pre-Heredia    test, which holds that, in order to
demonstrate      reversible error, “it must be shown that there was:

             (1) a misstatement       of the law

             (2) asserted   as a fact

             (3) by one professing      to know the law

             (4) which is relied     upon by other jurors

             (5) who for that         reason    changed     their   vote   to   a   harsher
                 punishment.”

g

        If the minority view in Sanders were to be adopted by the court, virtually any
statute    either permitting        or requiring    the trial judge to advise the jury about the
parole law would be acceptable,           since the minority test requires initially that, in order
to show reversible         error, there must occur a misstatement        of the law. Any statute
that required instruction         to the jury about the parole law would presumably       require an
accurate     recitation    of that law. So long as the statute did not itself require or permit
a misstatement         of the parole law, it would satisfy the minority test of Sanders.         -But
see
-    Farris    v. State,  535   S.W.  2d 608  (Tenn.  1976).

       Since Sanders, the court of criminal appeals has rendered     a number of further
decisions regarding jury discussion of the parole law, decisions which may arguably be
termed inconsistent.     See, e.g., Nacol v. State, 590 SW. 2d 481, 486 (Tex. Crim. App.
1979); O’Br an v. State, 591 S.W. 2d 464, 478 (Tex. Crim. App. 1979); Jones v. State, 596
S.W. 2d -. 134, 138 Tex. Cnm. App. 1980). But neither the Heredia-Sanders     test nor the

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Honorable     Oscar Ii. Mauzy   - Page Five       (MVdli-330)




Sanders constitutional    rationale has been repudiated,   and we are obliged to conclude
that the test remains operative.    As a result, we believe that some version of a statute
advising a jury about parole and good conduct time would probably be upheld as
constitutional  by the court of criminal      appeals, so long as the limiting safeguard,
discussed s,       was present.

       We must note, however, two significant       reservations     regarding  this conclusion:
the separation   of powers rationale relied on in Sanders is not logically compatible        with
this result - it ought to preclude the mere consideration          of the parole law by a juror;
and, if the dissenting view in Sanders were to prevail, no limiting safeguards         would be
required for a parole instruction   statute to pass constitutional     muster.

       Our consideration   of your inquiry is further clouded by the Supreme Court of
Tennessee’s   1976 decision in Farris v. State, 535 S.W. 2d 608 (Term. 1976), which you
have asked us to discuss     In that case, the court held unconstitutional a statute which
required a trial judge to “charge the jury with respect to parole eligibility,      certain
powers and duties of the Board of Pardons and Paroles, good behavior allowances,         and
the allowance    of honor time.”     535 S.W. 2d at 609. Although the court found the
statute invalid in part because of a caption defect, it also held it to be “impermissibly
vague and impossible to apply. ” -Id at 613. The court then noted that:

              1jl urors of reasonable or common     understanding    and intelligence
              are not capable of understanding        the various   ramifications     of
              the parole system.

g      As the concurring    opinion points out, the court can’t mean             that      the   statute
requiring trial judges to charge juries about the parole law is vague:

              its mandate    to trial judges is plain enough.    In my view, the
              vagueness    and confusion    to which Mr. Justice    H,enry refers
              relates   to the instructions   regarding parole eligibility,  etc.,
              which Chapter 163 would require trial judges to give to juries
              trying felony cases.

5   at 615.

      To complicate  matters, the court also raised the fair trial issue, and, like the
Texas Court of Criminal Appeals, it failed to refer to any constitutional basis therefor:

                 Jurors  should not be permitted   to speculate   on the length of
              sentences,  discretionary  parole, the accumulation     of good and
              honor time and a whole conglomeration         of contingent     events
              which, if they come to pass at all, will come to pass in the
              future.   Very heavily involved is the constitutional      right of a
              defendant  to a fair triaL

                  This is trial ‘by guess and by golly,’ and we will not
              countenance   it by upholding a statute which offends every sense
              of fairness and every precept of due process.

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Honorable   Oscar H. Mauzy     - Page Six        (m-330)




                 It tends to make a jury speculate        on the length of time a
            convicted    defendant    will be required to serve and further tends
            to breed irresponsibility     on the part of jurors premised upon the
            proposition    that corrective    action can be taken by others at a
            later date.      A greater defect in the law stems from the fact
            that jurors tend to attempt       to compensate    for future clemency
            by imposing harsher sentences.

                 The matter       of the future    disposition  of a convicted
             defendant  is wholly and utterly foreign to his guilt and is not a
             proper consideration    by a jury in determining  the length of his
             sentence.

Id. at 614. None of this discussion has any relevance    to the court’s ostensible   reason
G holding the statute unconstitutional     - vagueness; but it comes close to the largely
unarticulated   “fair trial” rationale of Heredia and Sanders.  In our opinion, the Texas
Court of Criminal Appeals would not adopt the reasoning of Farris which relates to
vagueness.    But the court could certainly rely on the language relating   to fair trial to
void any statute which failed to contain the limiting safeguards previously discussed.

        The present     state of the law relating      to the inquiry you have submitted         is
sufficiently   uncertain     as to preclude any confident    prediction about how the court of
criminal appeals might rule on a particular statute.         We believe it is instructive to note
that no constitutional       problem appears to exist under the Federal Constitution;       in any
event, no court has even suggested that advising a jury about parole might contravene
any portion of the United States Constitution.            The court of criminal appeals has a
choice of state constitutional       doctrines, however, with some support in decisional law,
including separation      of powers, vagueness and due process, which it may rely upon to
invalidate   a statute    which requires or permits a jury instruction    about parole and good
conduct time.       We believe that, at present, the court would be likely to uphold such a
statute, so long as it required the judge to admonish the jury not to discuss the subject.

                                        SUMMARY

                    The courts   would be likely to uphold a statute which
             authorizes  a ju@e to instruct jurors about the possible effects
             upon a prisoner’s sentence   of parole and good conduct time, so
             long as it required the judge to admonish the jury not to discuss
             the subject.




                                                     MARK        WHITE
                                                     Attorney   General of Texas


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Honorable   Oscar H. Mauzy      - Page Seven      (bw-330)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney      General

Prepared    by Rick Gilpin
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,   Chairman
Rick Gilpin
Bruce Youngblood




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