          THE       ATTOECNEY                GENERAL
                        OF-XAS
                     AURTIN,TEXAR          78711



                           April    26,   1971



Hon. Bill Clayton                           Opinion No. M-044
Chairman, Committee on Counties
P. 0. Box 120, Capitol Station              Re: The constitutionality
Austin, Texas 78711                             of House Bill No. 501,
                                                (62nd Leg., R.S., 1971)
                                                amending the Code of
                                                Criminal Procedure so
                                                as to permit the trans-
                                                fer of persons convicted
                                                of felonies to the De-
                                                partment of Corrections,
                                                under certain circum-
                                                stances, pending appeal
Dear Mr. Clayton:                               of the conviction.
     In your recent letter you request our opinion as to the
constitutionalityof House Bill No. 501, introduced and now
pending In the House of Representatives,62nd Legislature,Regu-
lar Session, 1971.
    This Bill provides in pertinent part as follows:
         "Section 1. Article 44.04, Code of Criminal Proce-
    dure, 1965 is amended by adding thereto a new Section,
    Section (is, to read as follows:
              '(i) If the defendant is convicted of a
         felony, is assessed punishment which is not
         probated, and gives notice of appeal, the
         trial court may in its discretionorder the
         defendantplaced in the custody of the Texas
         Departmentof Corrections,where the defend-
         and will be confined pending the appeal of
         his convictionprovided that (1) the punish-
         ment assessed exceeds fifteen years confine-
         ment or (2) It appears to the satisfactionof
         the txal court that the defendantwill not be
         released on bond pending;such appeal, or (3) the
         ae
         f en an                               a itiT
         ~e~~lr~f"~~ed~~e~~~~f~~r~~      ~%%&%hto
              exas Department of Correctionspending
         appeal, he shall be entitled to all credits on
                            -409l-
Hon. Bill Clayton,page 2    (M-844)

         his sentence the same as if his conviction
         were final.'" (Emphasissupplied.)
     It is evident that the Legislaturehas not limited bene-
ficial computationof time benefits to convicted felons with
more than fifteen years confinementbut has extended such
benefits to all felons who meet the prescribed conditions.
     The Constitutionof the State of Texas authorizesthe
Legislatureto enact laws. Section 1, 42 and 43, Article III,
Texas Constitution. Specifically,by virtue of Section 58,
Article XVI, the Legislaturehas the authority to provide by
law for the management of the "Prison System of Texas'.
     Moreover, the Legislaturehas the power to enact any law
not in conflict with the Texas Constitutionor the Constitu-
tion of the United States. De Shazo v. Webb, 113 S.W.2d 519
(sup.ct. 1938).
     The first question arises as to whether this classifica-
tion, as set out in the Bill, violates the equal rights pro-
vision of Section 3, Article I of the Texas Constitution
and/or the equal protection provision of the FourteenthAmend-
ment to the Constitutionof the United States,
     There must be a reasonablerelationshipbetween the
classificationmade and the objects to be accomplishedby the
statute. City of Houston v. Houston IndependentSchool District,
436 S.W.2a 5b?3 (Ci A             difi d    th        d 443
s.w.2d 49 (sup.ct.Vig gj; lYbt))
                     %p    Ru&rmz. St~te~3~2 ErW%y2;     (Tex.
Crim. 1961); Carringtonv.Rosh,38C U.S. 89 (1965).
     Here, the announcedpurpose of House Bill 501 is to per-
mit a convicted felony defendant to transfer to the Texas
Department of Correctionsduring the pendancy of his appeals
so as to become "entitledto all credits on his sentence the
same as if his convictionwere final". Some of such credits
are contained in Article 6184 1, V.A.C.S. which provides for
commutationof time for good conduct.
     It seems clear that the Legislaturein imposing the condi-
tions precedent in the proposed Article 44.04 has done so with
an eye to the existing Subsection (a) of that Article. It pro-
vides as follows:
          "Any defendant who is convicted of a misdemeanor,
     or who is convicted of a felony and whose punishment
     is assessed at a fine or confinementnot to exceed 15


                            -4092-
Hon. Bill Clayton, page 3    (M-844)

    years or both, shall be entitled to bail under the
    rules set forth in this Chapter pending disposition
    of his motion for new trial, if any, and pending dls-
    position of his appeal, if any, and until his convic-
    tion becomes final."
     It is equally clear that this provision is not violative
of the equal protection clause of the Federal Constitution.
In United States ex rel Stephen Fink v. Heyd, 287 F.Supp. 716
(196u1) tn u 1% a St t    Ul t 1 t c   t for the Eastern Dis-
trict if L&i~i~a, Nzwe&leki &vi:&,        had before it the
Louisiana Statute which provides that those felons convicted
and sentencedto a term of more than five years may not post
bail pending appeal. In deciding that this statute was not
constitutionallydeficient the Court said:
         "It is not irrational for the State's people
    and its Legislatureto conclude that anyone already
    convicted of a crime involving five years confine-
    ment is so poor a bail risk that he should not be
    set free pending appeal."
     It would therefore appear to be equally certain that the
Texas Statute which draws the line at fifteen years would
similarlybe constitutional.
     The general rule can be stated, "the States are free to
provide such criminal procedures as they choose, including
rules of evidence, provided that none of them infringe a
  arantee of the Federal Constitution." Knees v. Culbertson,
$"
 06 F.2d 621 196 . To a similar effect is Martin v. Beto,
397 F.2d 741 t1968 .
     Reading the quoted portion of the proposed statute on page
one of this opinion then, the classificationof persons eligible
to be transferredto the Texas Departmentof Correctionsand
therefore, entitled to receive all the benefits that accrue from
such a transfer Is drawn between those prisoners who are likely
to make bail and those prisoners who are not likely to make bail.
The object of the legislationis to enable the prisoner to begin
reaping the rewards of the beneficial computationof time in the
Texas Department of Correctionsat the earliest possible date.
Condition No. 3 in the proposed legislationeven permits the
prisoner himself to choose whether or not he will be transferred
to the Texas Departmentof Corrections. This is so irrespective
of the length of his sentence. It would appear therefore,that
there is a rational'relationship between the classificationof
prisoners eligible to be transferredand the object of the


                             -4093-
Hon. Bill Clayton, page 4    (M-844)

proposed legislation, Accordingly,In Its present form, House
Bill No. 501 is constitutional.
     However, there is a constitutionaland administrativeprob-
lem presented by the Bill in its present form which should be
discussed and consideredby your commlttee. Those defendants
who are placed in the custody of the Texas Department of Correc-
tions pending their appeals would not be subject to compulsory
prisoner labor laws as are those who have been finally convicted,
that is, those referred to in the Constitutionand statutes as
"convict labor". For exsmple, Article XVI, Section 24, Consti-
tution of Texas, provides that "The Legislature shall make pro-
vision for laying out and working public roads, for the building
of bridges, and for utilizing f~n~a~~T~~~~~~,~~~u~i~t
labor to all these purposes.                            tt
thismandate, Articles 6736 and 67 4, Vernon's Civil Statutes,
were enacted providing for the utilizing of money end "convict
labor" and for the County Commissioners'Court to provide for
various services to and for the safe and humane keeping of
"Count convicts'I.See also related statutes,Articles 6739
and 673;6, Vernon's Civil Statutes. No provisions in this re-
spect have been made by those,constitutlonal provisions and
statutes enacted pursuant thereto for defendantswhose appeals
are pending. A ‘convict’ is one who has been finally convicted
by a court. Black's Law Dictionary 4th Edition, p. 403; Arcia
v. State, 26 Tex.App. 193, 95 S.W. 685 (1888);Brown v. State,.
 b Tex.Crim. 8, 215 S.W. 323, 325 (1919).
     Article 6166a, Vernon's Civil Statutes, declaring the
policy of this State, in the operation and management of the
Prisons System, provides, in part, as follows:
          I,
               .  All prisoners shall be worked within the
                   .   .

     prison walls and upon farms owned or leased by the
     State;    . . .'

     Article 6166x, Vernon's Civil Statutes, directs the Depart-
ment of Correctionsthat, "Prisonersshall be kept at work under
such rules and regulationsas may be adopted by the manager with
the Board's approval; . . .I'
     In view of the above considerations,we believe it should
be observed that the ThirteenthAmendment of the Constitution
of the United States, which forbids involuntaryservitude ex-
cept as a punishment for crime upon final convictions,would
preclude enforcementof the above statutes by the state against
those defendantswhose appeals are pentiingand who are required
involuntarilyto labor. See Bailey v. Alabama, 219 U.S. 219


                             -4094-
Hon. Bill Clayton, page 5        (M-844)

                                           U.S. 133 (1914);
                                           Pollock v. Williams,

     This opinion is not to be interpretedas Indicating either
approval or disapprovalof the merits of this legislation,nor
as indicatinghow the proposed constitutionalproblems might be
resolved. We have confined our comments to the constitutional
questions raised by 'theprovisions of the legislationand by the
Bill's necessary application,operation, and administration. We
only note in passing that with reference to constitutionaldue
process by law, the Director of Correctionspresently has only
power and authority over convicts and is not given any such
power and authority by the Bill incident to the transfer, care,
safekeeping,or other disciplinarypowers over those defendants
placed in his custody to await final dispositionof their appeals.

                            SUMMARY
         House Bill No. 501, as written, is constitutional
    insofar as it would permit the transfer of defendants
    pending appeals to the custody of the Department of
    Corrections, upon their request.
         The classificationof prisoners eligible to be
    transferredto the Texas Department of Corrections
    bears a rational relationship to the object of the
    proposed legislationand therefore is not violative
    of the equal protection clause of Section 3, Article
    I, Constitutionof Texas, and the FourteenthAmend-
    ment of the Constitutionof the United States.
         However, constitutionalproblems in the appli-
    cation, operation, and administrationof the law
    will arise if the prisoners were required to work
    against their will or are otherwise subjected to
    the disciplineof honvicts by the Director of
    Corrections.
                                 Yours very truly,
                                 CHAwFOFuJC.NAHTIN
                                 Attorney General


                            By
                                 First Assistant


                              -4095-
Hon. Bill Clayton, page 6    (M-844)

Prepared by Max P. Flusche, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lattimore
Sam Jones
Max Hamilton
Sally Phillips
MEADE F. GRIFl?CN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant




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