     Case: 10-40938     Document: 00511632880         Page: 1     Date Filed: 10/14/2011




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

                                                                            FILED
                                                                         October 14, 2011

                                      No. 10-40938                         Lyle W. Cayce
                                                                                Clerk

RICHARD DELANEY KYLES,

                                                  Plaintiff - Appellant
v.

GERALD GARRETT; TROY FOX,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:03-CV-53


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Richard Kyles was convicted of capital murder in 1976 and sentenced to
life in prison. He brought the instant § 1983 action in January 2003 in the
United States District Court for the Southern District of Texas, challenging the
constitutionality of a change to Texas’s parole procedures, specifically the so-
called extraordinary vote provision. At the time Kyles committed murder, in
January 1975, Texas law provided that parole decisions were to be made by
majority vote of the state parole board. TEX . CODE CRIM. PROC. ANN. art.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-40938    Document: 00511632880       Page: 2   Date Filed: 10/14/2011



                                   No. 10-40938

42.12(C) § 13 (West 1974). Kyles alleges that the board at that time was
comprised of only three members. The board is currently comprised of seven
members but has included as many as eighteen in the past. In 1993, the Texas
legislature enacted the extraordinary vote provision, whereby parole decisions
for prisoners serving time for capital felonies could only be made by a two-thirds
vote of the entire parole board. TEX. CODE CRIM. PROC. ANN. art. 42.18 § 7 (West
1996). The extraordinary vote provision was made retroactive in 1995. See id.
(legislative history notes). Kyles claims that applying the extraordinary vote
provision to his parole determinations violates the Ex Post Facto clause. He
seeks declaratory and injunctive relief.
      This case has a winding procedural history, but for our purposes the
procedural posture is simple. The district court granted summary judgment to
the defendants/appellees based on alternative holdings: (1) Kyles unsuccessfully
challenged the constitutionality of the parole procedure in state and federal
habeas corpus proceedings, and the judgments in those proceedings preclude this
§ 1983 action; and (2) Kyles’s summary judgment evidence fails to raise genuine
issues of material fact on whether the parole procedures create a sufficient risk
of enhancing his punishment.
      Although there is little authority on what preclusive effect should be given
to habeas proceedings in a later civil action, the general principles of res judicata
and collateral estoppel seem to clearly bar this action. With respect to the
merits of the case, Kyles presents some summary judgment evidence, but none
that demonstrates more than a speculative and attenuated chance of enhanced
punishment. The evidence he presents does not even relate to the parole
procedure that existed at the time he committed his offense.
      We find that the district court committed no reversible error in granting
summary judgment. That judgment is
                                                                       AFFIRMED.

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