                                 The Attorney General of Texas
JIM MAlTOX                                           Aug;cst 31,      1984
Attorney General



Supreme Couri Building          Eoaorable El Franccb Lee                                Opinion No. JM-202
P. 0. Box 12545
Austin. TX. 78711. 2545
                                Chairman
51214752501                     Committee on Electicns                                  Re: Construction   of House Bill
Telex 91olS74-1357              Texas House of Repro sentatives                         No. 718 which amends article
Telecopier  512/475-0258        P. 0. Box 2910                                          5.01 of the Election Code
                                Austin, Texas    78;‘t 9
714 Jackson, Suite 700
Dallas. TX. 75202-4506          Dear Representative!         Lee:
2141742.9944
                                      You request   a% interpretation of House                      Bill  No. 718 of the
                                Sixty-eighth  Legislnture  which amended article                     5.01 of the Election
4824 Alb-artr Ave.. Suite 180
El Pap, TX. 799052793
                                Code to read in pertinent part:
915/533-34S4       .
                                            The foll.cwing   classes            of persons       shall     not   be
                                            allowed i:o vote in this            state:
‘001 Texas.   Suite 700
   wstc.“, TX. 77002.3111
                                                .    .   .
I 13/2255995

                                                3.  Pwsons    while            incarcerated,        on parole,
905 Broadway. Suits 312                     mandatory  supervision.           or probation       as a result of
Lubbock. TX. 79401.3479                     a felony conviction.
808/747-5239

                                                4. P,v:sons who have been convicted                          of    a
4309 N. Tenth. Suite S                      felony,    for  a period    ending  on   the                     fifth
McAllen. TX. 79501-1685                     annivers,iry of the date on which the person:
5121992.4547

                                                (A) received          a certificate       of   discharge    by the
200 Main Plaza. Suite 4W                     Board ofr?ardons         and Paroles;       or
San Antonio. TX. 78205.2797
51212254191                                     (B) completed a period of probation                   ordered    by
                                             a court. (Emphasis added).
An Equal Opportunilyl
Affirmative Action Employer     Article     VI. sectf,cn 1 of          the Texas Constitution   disqualifies           all
                                felons    from voting, subject         to exceptions made by the legislature.

                                     You seek an :lnterpretation   of the underlined language. You ask
                                whether a certifiwte    of discharge issued by the Texas Department of
                                Corrections   for persons sentenced prior to August 29, 1977 is the
                                legal equivalent of discharge from the Board of Pardons and Paroles.

                                      Article   616621, V.T.C.S.,            provides    in part:




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            When a convict is entitled       to a discharge from the
            State    penitentially    . . .   the Director    of   the
            Department      of    Ccmrections    or   his   Fxecut ive
            Assistant     shall    prepare  and deliver    to him a
            written discharge.       . . .

      Article   42.12            of   the   Code of   Criminal   Procedure   provides   in
sections   23 and 24:

               Sec.         23.

                .   .   .    .

                When any parol,sd prisoner   has fulfilled     the
            obligations of his parole and has served out his
            term as conditiomd    in the preceding     paragraph,
            the Board shall lutke a final   order of discharge
            and issue to the parolee     a certificate    of such
            discharge.

                Sec.  24.   When any prisoner         who has been
            paroled or released     to mandatory supervision      has
            complied with the rules and conditions         governing
            his release until the end of the term to which he
            was sentenced,     mci without a revocation       of his
            parole or mandatcry supervision,        the Board shall
            make a final    order of discharge        and issue   the
            prisoner a certif:lcate   of discharge.

      Prior   to August 29, 1977, article          42.12 did not provide          for
mandatory supervision.       This procedure was added by a 1977 amendment.
Acts 1977. 65th Leg.. ch. 3ai’r, 12, at 925. A prisoner under maodatory
supervision,    like a parolel!,     is released    from imprisonment,     but not
from the legal custody of the state,           for rehabilitation     outside     the
prison walls.      Code Grim. IYoc. art. 42.12, 52~. d.           The eligibility
requirements    are different     for each form of supervision.           Moreover,
parole    is not automaticall:r       granted to eligible      prisoners;     it is
discretionary     with the Bomd of Pardons and Paroles                 subject      to
statutory guidelines.      -Id.  I15   (e-i).

      In contrast,     a prisoner     not on parole “shall    be released    to
mandatory supervision”       by !:he board when his actual time served plus
good conduct      time equal the maximum sentence.         Id.  115(c).    See
V.T.C.S. art. 6181-1 (accrual of good conduct time).The          good conduct
time law existing        before    August 29, 1977, actually    commuted the
sentence so that the prisoner was discharged from the Department of
Corrections     when good conduct time plus time served equaled the term
of the sentence.        See Acts 1927, 40th Leg.,      ch. 212, 023 (former
V.T.C.S.    art. 6166vrActs        1943. 48th Leg., ch. 361, at 635 (former
V.T.C.S.    art.   61841).      Tke 1977 amendment to article     42.12   also



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Honorable El France Lee - Page 3       (m-202)




repealed the former good coduct       time statutes.     Acts   1977. 65th Leg.,
ch. 347. 16. at 933.

     The 1977 amendment to r,rticle     42.12 provides    in section       7 that

          [t]his  Act applieE only to inmates sentenced to
          the Texas Departmc!rX of Corrections for an Offense
          committed on or after the effective    date of this
          Act.

If the mandatory supervis:lon       law were imposed. on a prisoner    who
coamritted his crime before     the August 29, 1977 effective    date, he
would remain under state su~lczvision at a time when prior law required
his discharge from his sent,tnce.      Section 7 prevents the unconstitu-
tional imposition  on an off’r,nder of a punishment which did not exist
when he committed the trim?.       -See Tex. Const. art. I, 516 (ex post
facto law).

       Thus, someone sentencei  for an offense committed prior to August
29, 1977 and not paroled ha:; received or will receive a discharge only
from the Department of Corrkctions.        Persons sentenced for offenses
committed after August 29, L977 and subsequently        placed on mandatory
supervision    were or will be discharged by the Board of Pardons and
Paroles.     Persons paroled at any time receive      their certificate  of
discharge from the Board of ‘?ardons and Paroles.      The board informs us
that the Department of Corl,c,ctions issues a discharge certificate     for
every person who completes his sentence,        and the board performs its
duty to issue a discharge      certificate   by stamping the department’s
certificate.

      Your question about the, “legal equivalent”      of a certificate    from
the Board of Pardons and Psroles raises         the issue of the class of
persons    enfranchised    by ;Irticle    5.01.    Does article      5.01   now
enfranchise    all convicted  felons   five years after     completing    their
sentences or does it exclude! any felon who could not be discharged by
the Board of Pardons and I,zroles because he was not paroled and not
subject to mandatory supervision?      You in effect   ask whether section 4
of article   5.01 should be read as follows:

               4. Persons  rrt,o have been convicted             of    a
           felony,    for a period    ending  on   the           fifth
           anniversary of the date on which the person:

              (A) received a certificate    of discharge by the
              Board of Pardcas and Paroles [or the equivalent
              of such a certificate  of discharge].   . . .

      Support for the view :hat felons discharged by the Department of
Corrections   are reenfranchl:;ed on the fifth anniversary of that date
is to be found in the legl,elative   history of House Bill No. 718.  As,
first  introduced it did not include a section 4, but only section 3,



                                        p. 890
Bonorable   El France Lee - Page 3     (a-202)




repealed    the former good conduct   time statutes.        Acts 1977, 65th Leg.,
ch. 347,    56. at 933.

     The 1977 amendment to article      42.12    provides    in   section     7 that

            [t]his  Act applies  only to inmates sentenced to
            the Texas Department of Corrections for an offense
            committed on or after the effective   date of this
            Act.

If the mandatory supervisi,cn    law were imposed on a prisoner       who
committed his crime before    the August 29, 1977 effective     date, he
would remain under state supervision   at a time when prior law required
his discharge from his sentence.     Section 7 prevents the unconstitu-
tional  imposition on an offender of a punishment which did not exist
when he committed the crime!. -See Tex. Const. art. I, 516 (ex post
facto law).

       Thus, someone sentenced for an offense committed prior to August
29. 1977 and not paroled hat received or will receive a discharge only
from the Department of Cor::octions.         Persons sentenced for offenses
committed after August 29, 1977 and subsequently          placed on mandatory
supervision    were or will blr discharged     by the Board of Pardons and
Paroles.     Persons paroled al: any time receive       their certificate   of
discharge from the Board of Iardons and Paroles.         The board informs us
that the Department of Corre:tions       issues a discharge certificate    for
every person who completes his sentence,          and the board performs its
duty to issue a discharge      certificate     by stamping the department’s
certificate.

      Your question about th,r “legal equivalent”      of a certificate     from
the Board of Pardons and I’rroles       raises  the issue of the class of
persons    enfranchised    by article     5.01.    Does article       5.01   now
enfranchise    all convicted  Lslons five years after       completing     their
sentences or does it excludr any felon who could not, be discharged by
the Board of Pardons and Pit::oles because he was not paroled and not
subject to mandatory supervir:ion?     You in effect   ask whether section 4
of article   5.01 should be rc!c,d as follows:

                 4.  Persons  who have been      convicted          of    a
             felony,    for  8 period     ending   on   the         fifth
             anniversary of thti! date on which the person:

                (A) received 21 certificate    of discharge by the
                Board of Pardonr; end Paroles [or the equivalent
                of such a cert:.f’icate of discharge].   . . .

      Support for the view thnt felons discharged by the Department of
Corrections    are reenfranchissd on the fifth anniversary of that date
is to be found in the legi~~3.ative history of House Bill No. 718.   As
first   introduced it did not include a section 4. but only section  3,



                                       p. 890
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    Rcmorable El France      Lee - Page 5 (JM-202)




    rational    basis.     The only d:Lstinction  between the groups is “wholly
    arbitrary”    -- a difference     Ln the official     ministerial    act granting
    discharge.         There  is no constitutionally       justifiable      basis  for
    granting or withdrawing the franchise           on this purely insubstantfal
    difference.        Thus,  the s!:r.tute must be construed          to omit this
    difference    if it is to be sil\,ed from invalidity.

           You also     ask whether a certificate             of discharge       from other
    institutions     such as a federal or sister          state prison or parole board
    is the legal equivalent         of e certificate       of discharge from the Board
    of Pardons and Paroles.            C:fnerally , courts have said that statutes
    regulating    the right to vote should be liberally              interpreted      in favor
    of- that right.      Thomas v. i?m.            212 S.W.2d 625 (Tex. 1948); Walker
    v. Thetford,     418 S.W.Zd 276 (Tex. Civ. App. - Austin 1967, writ ref’d
    n.r.e.1;    Wooley v. Sterrett,,       387 S.W.2d 734 (Tex. Civ. App. - Dallas
    1965, no writ);      Mitchell v. -- Jones, 361 S.W.2d 224 (Tex. Civ. App. -
    Texarkana 1962. no writ).             Moreover,    relevant     cases have concluded
    that the Texas law barring convicted               felons    from voting applies         to
    persons convicted        in fedeial      as well as state court.          -Shipherd      v.
                           See also II;lyes v. Williams,         341 F. Supp. 182 (S.D.
                               Genera:rOpinion V-278 (1947) (prohibition               against
    convicted     felons    voting     applies     to persons      convicted     in    federal
    court).     See also Hughes v. --State, 284 S.W. 952 (Tex. Grim. App. 1926)
     (person convicted      of felony in federal         court disqualified         from jury
    service).      Ilence, we conclude         that felons      discharged     by either       a
    federal or a sister        state’s    correctional    institution     or parole board,
    as well as by the Texas DeTs&rtmentof Corrections,                  are reenfranchised
    five years after that event.            To conclude otherwise could subject the
    Act to possible      invalidation      under the Equal Protection         Clause of the
    United States Constitution.

                                          SUMMARY

                    House Bill        !I.>. 718    of   the  Sixty-eighth
                 Legislature,     codiEied     as article   5.01   of   the
                 Election     Code,   restores    the vote    to   persons
                 convicted    of a fe:l,ony on the fifth anniversary of
                 their    discharge     by the     Texas Department       of
                 Corrections    or by 3 federal or sister state prison
                 or parole board, just like those discharged by the
                 Texas Board of Pardons and Paroles.




                                                        JIM     MATTOX
                                                        Attorney General of Texas          i




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TON GREEN
First Assistant   Attorney   Gererel

DAVID R. RICHARDS
Executive Assistant Attorney, General

Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINIONCOMWTT.EE

Rick Gilpin,   Chairman
Jon Bible
Colin Carl




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