                                       EATTOE?.NEY                                GENEIZAL
                                                       OF         TEXAS
                                               AUSTIN.            TEXAS          78711




                                                      February         25,     1974


The Honorable  William  H. Skelton,                                  Chairman             Opinion        No.    H-        240
Board of Pardons   and Paroles
Room       501 John         H.    Reagan         Bldg.                                    Re:      The    persons         to whom
Austin,         Texas       78701                                                         amendments             to Article           42.12,
                                                                                          $ 22,     Texas       Code       of Criminal
                                                                                          Procedure,may               be applied
                                                                                          constitutionally.


Dear      Mr.      Skelton:


           You     have     asked        our     opinion       concerning         the recent         amendment              to Article
42,12      5 22 Vernon’s               Texas      Code      of Criminal           Procedure          which       affects        the com-
putation        of time      served       on the         sentence         of prisoners           whose     parole         has    been
revoked.


           Prior     to June 14,              1973,     section       22 of Article         42.12        provided:


                              ‘Sec.      22.          Whenever         a paroled       prisoner          is accused
                   of a violation             of his     parole       on information              and complaint            by
                   a law      enforcement               officer      or parole        officer,      he shall         be
                   entitled       to be heard            on such        charges       before       the Board         under
                   such     rules       and regulations               as the Board          may      adopt;      providing,
                   however,   said hearing    shall be held within forty-five  days
                   of the date of arrest   and at a time and place   set by the Board.
                   When      the Board           has     heard       the facts,       it may       recommend              to the
                   Governor            that    the parole           be continued,          or     revoked,       or modified
                   in any manner                the    evidence        may     warrant.           When       the Governor
                   revokes         a prisoner’s            parole,          he may     be required             to serve         the
                   portion        remaining            of the       sentence      on which         he was       released
                   on parole,           such      portion         remaining        to be calculated             without
                   credit        for   the time         from        the date     of his    release         on parole
                   to the date          of his        arrest        or charge      of parole        violation.        ”




                                                               p.    1113
The     Honorable       William        H.    Skelton,            page     2    (H-240)




That    section      was     amended         by Acts            1973,    63rd       Leg.,          ch.    447,      p.    1235    and now
provides:


                           “Sec.     22.      Whenever               a paroled         prisoner            is accused
               of a violation          of his       parole           on information             and complaint
               by a law          enforcement             officer        or parole           officer,           he shall
               be entitled          to be heard            on such         charges          before         the Board
               under        such     rules     and regulations                 as the Board                may      adopt;
               providing,           however,             said     hearing        shall      be held        within
               sixty       days     of the date          of arrest          under      a warrant               issued      by
               the Board           of Pardons            and Paroles             or the Governor                   and
               at a time          and place         set by the Board.                    When        the Board             has
               heard       the facts,        it may         recommend               to the Governor                  that
               the parole           be continued,               or   revoked,          or modified               in any
               manner         the    evidence         may         warrant.            When      the Governor
               revokes           a prisoner’s            parole,        he may        be required                to serve
               the portion           remaining            of the sentence              on which            he was
               released           on parole,         such        portion       remaining             to be calcu-
               lated       without     credit       for     the time          from       the date          of his
               release        on parole         to the date             of his      revocation        of parole
               by the Governor               on the        charge        of parole           violation.     When
               a warrant           is issued        by the Board               of Pardons                and Paroles
               or the Governor               charging             a parole         violation,            the    sentence
               time     credit       shall     be    suspended             until     a determination                 is
               made        ‘by the Board            of Pardons           and Paroles                or the Governor
               in such       case     and     such        suspended            time      credit          may     be re-
               instated       by the Board               of Pardons            and Paroles                should         such
               parole       be continued.            ”


         The   new     statute       institutes          three       major       changes           in the rights            of a prisoner
whose     parole      is revoked.            These         are:


         (1)   The    time       in which       a hearing            must      be held        is    extended             from    45 to
         60 days.


         (2) After      revocation,           the remainder                   of the prisoner’s                  sentence        is
         served      beginning        at the time               of revocation            rather          than the time           of
         arrest,      a change        which         can cause           an additional              period        to be      served
         of as much         as     60 days.
The    Honorable              William              H.    Skelton,          page     3 (H-240)




           (3)    Upon        issuance             of a warrant              charging        a parole         violation,           sentence
           credit      is     suspended                 until    a determination                  is made      as to whether              to
           revoke        parole.


           You have            advanced             four        questions         which      may      be combined               and    summarized
as asking         to which          groups              of persons           the new law             may      be applied         in conformity
with      the ex post          facto         prohibitions                 of the United           Statasand       Texas         Constitutions.


           Article       1,     Section            9,    Clause           3 of the United            States     Constitution             provides:


                                “No         Bill    of Attainder             or    ex post         facto    Law      shall      be
                  passed.         I’


Article      1,    Section        16,        of the Texas                 Constitution         provides:


                                “No         bill    of attainder,             ex post        facto     law,     retroactive
                  law,        or any law                 impairing          the obligation             of contracts,             shall
                  be made.              ‘I


           The     classic        definition               of ex post         facto        is found        in Calder       v.    Bull,         3 U. S.
(3Dall.     ) 386,       390      (1798),           which         lists     the four        types      of ex post       facto         laws     as
follows:


                                “1st.          Every        law that makes                 an action          done   before
                  the passing                 of the law;            and which           was       innocent     when         done,
                   criminal;             and punishes                 such       action.       2d Every          law that
                  aggravates                 a crime,             or makes          it greater         than     it was,
                  when         committed.                   3d.      Every         law     that    changes        the punish-
                  ment,         and inflicts                a greater            punishment,           than the law
                  annexed          to the crime,                    when         committed.            4th.      Every        law
                  that        alters         the legal          rules       of evidence,             and receives            less,
                  or     different,                testimony,             than    the law         required       at the time
                  of the commission                         of the offense,                in order        to convict        the
                  offender.             ”


           The    leading         Texas             case        on the      ex’post        facto     nature      of laws        affecting           parole
rights      is Ex parte            Alegria,               464     S. W.      2d 868        (Tex.      Crim.       1971).        Alegria         was
convicted         of rape         and sentenced                    to life       imprisonment.                Subsequently             the Legislature




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                                                                                                                                                       -          .




The      Honorable            William           H.     Skelton,        page        4     (H-240)




changed          the amount           of time           required            to be       served         to be       eligible        for    parole
from      fifteen        to twenty         years.          The        Court        of Criminal                Appeals          held      that     a law
adversely           affecting         a prisoner’s              eligibility             for    parole         consideration                 was     ex
post     facto      to the     extent           that    it applied          to persons               already          convicted          and      sen-
tenced      when         the new law became                      effective.


          Greenfield            v. Scafati,             277     F.     Supp.           644     (D.     Mass.          1967)(3-judge               court)
aff’d     mem.          390   U. S.       713 (1968)          involved         rights           of prisoners               after      revocation             of
parole.          There        the Massachusetts                      Legislature                enacted         a law         denying        good          time
credit      to persons             whose         parole       had been           revoked              during         the first        six    months
after     conviction.               The      court       held        the statute             could      not be constitutionally                        applied
to Greenfield             who had been                 convicted            and sentenced                  before       the     effective          date
of the Act.


          To the extent               that      the amendment                 to Article               42.12,         $ 22,    would         adversely
affect      the rights         of persons               who     have        been       convicted             of offenses           committed
prior     to the         effective         dates        of the Act,           it would           be an ex post                facto      law      and
could     not be constitutionally                       applied         to these             persons.           See,        Ex parte           Medley,
134     U. S.     160 (1890),         for       the proposition               that         the dateof           the offense              is the
relevant         date      in determining                the ex post             facto         nature         of a law.            See    also     In
re Valeneuela,                79 Cal.           Rptr.     760        (Ct.     App.         1969),          which      was      cited      with -
approval         by the Texas                Court       of Criminal               Appeals            in Ex parte             Alegria,            supra,
for     the proposition              that       the date        of the initial                offense         rather       than the date               of
subsequent              offenses      on which            parole        revocation               is based            determine            the     ex
post     facto     nature       of a law.


          It is presumed                  that the Legislature                      intended           its    enactment             to be consti-
tutional,         53 Tex.          Jur.      2d Statutes,             $ 182,~.          271.         Thus      the amendment                 to
Article         42.12      $ 22 could           only     have        been     intended               to apply,        and does           apply,
to persons           convicted            for    an offense            committed                on or after            the effective              date       of
the     amendment.


                                                                      SUMMARY
                                                                     ~-

                               The     1973          amendments              to Article              42.12,        $ 22,      Texas         Code
                   of Criminal              Procedure,                apply      only         to those         persons          convicted           for
                   an offense             committed             on or after              June        14,     1973.




                                                                                                     Attorney          General           of Texas

                                                                po 1116
                                                                                       v
The   Honorable   William   H.   Skelton,        page    5   (H-240)




Opinion   Committee




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