                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 20, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-50064
                         Summary Calendar


JASON M. BRESHEARS,

                                    Plaintiff-Appellant,

versus

GERALD GARRETT; PADDY BURWELL; ALVIN SHAW;
RISSIE OWENS; JUANITA GONZALEZ,

                                    Defendants-Appellees.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                       USDC No. 5:04-CV-356
                       --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Jason M. Breshears, a Texas prisoner (# 635072) serving a

30-year sentence for aggravated sexual assault with a weapon,

appeals the dismissal of his 42 U.S.C. § 1983 civil rights suit

as frivolous and for failure to state a claim, pursuant to 28

U.S.C. § 1915A(b), and the granting of two defendants’ motion for

summary judgment, FED. R. CIV. P. 56.   Breshears asserted in his

complaint that the defendants, members of the Texas Board of

Pardons and Paroles (“Board”), had violated his rights under the


     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-50064
                                -2-

Due Process, Ex Post Facto, and Equal Protection Clauses by

retroactively applying to him and other sex offenders a September

1, 1995 change in state parole procedure, which required that sex

offenders receive 12 votes from a specially-convened 18-member

Board panel in order to be granted release on parole.   He alleged

that, prior to that date, such offenders had needed to receive

only two favorable votes from a standard three-member panel in

order to be granted parole.    Breshears has admittedly filed a 28

U.S.C. § 2254 habeas petition raising these identical claims, his

appeal of the denial of which remains pending before this court.

     Without addressing any evidentiary materials, the district

court concluded that Breshears’s constitutional claims were

frivolous and that he had failed to state a claim, because Texas

prisoners had “no constitutionally protected right to parole or a

parole hearing.”   Insofar as Breshears was raising a due-process

claim, this conclusion was correct.    See Orellana v. Kyle, 65

F.3d 29, 32 (5th Cir. 1995).   Breshears also failed to state a

cognizable equal-protection claim because he had not shown that

sex offenders were a suspect class or that they had been denied a

fundamental right, see Rublee v. Fleming, 160 F.3d 213, 217 (5th

Cir. 1998), and subjecting such offenders to different parole

procedures is reasonably related to a legitimate penological

interest.   See, e.g., Finley v. Staton, 542 F.2d 250, 250 (5th

Cir. 1976).   Accordingly, we AFFIRM the district court’s

dismissal of Breshears’s due-process and equal-protection claims
                           No. 05-50064
                                -3-

as frivolous and for failure to state a claim.    See Berry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999).

     The district court’s determination that Breshears’s ex post

facto claim was frivolous, on the ground that Texas prisoners had

no “constitutionally protected” right to parole, was erroneous.

The viability of an ex post facto claim is not dependent on the

existence of a “vested” constitutional right.    See Orellana, 65

F.3d at 32 (citing Weaver v. Graham, 450 U.S. 24, 29-30 (1981)).

Moreover, Breshears’s habeas appeal is being held pending a

decision in other cases, and, in one of those cases, a

certificate of appealability (“COA”) has been granted with

respect to a nearly identical ex post facto claim.   Even if it

assumed arguendo that Breshears’s ex post facto claim is

nonfrivolous, however, we conclude that it is barred by the

doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), because the

granting of relief would necessarily imply the invalidity of the

parole decisions Breshears challenges in this civil rights

action.   See Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995).

Accordingly, we AFFIRM the dismissal but without prejudice of

Breshears’s ex post facto claim on the alternative ground that

such claim has not yet accrued under Heck.   See Castellano v.

Fragozo, 352 F.3d 939, 959-60 (5th Cir. 2003), cert. denied, 125

S. Ct. 31 (2004); Zolicoffer v. United States Dep’t of Justice,

315 F.3d 538, 541 (5th Cir. 2003).

     AFFIRMED.
