Hoh. Pat Bullock                     Opinion No. M-100
Chairman
Board of Pardons and Paroles         Re:   Construction of that
Austin, Texas                              portion of S.B. 145,
                                           60th Legislature,
                                           relating to the amend-
                                           ment of Article 42-12,
                                           Section 15, Vernon's
                                           Cde of Criminal Pro-
Dear Mr.Bullock:                           cedure.
      .'Youhave requested our opinion as to'the construction.of
the amendment of Section 15 of Article 42.12, Vernon's Code
of Criminal Procedure, by S.B. 145, 60th Legislature. In
substance, your questions are directed to what effect the
amendment has in reference to the time persons confined in
any penal or correctional institution of this State are eli-
gible   for parole.
     Before Section 15 of Article 42-12 was amended ft con-
sisted of six paragraphs, which were not numbered or lettered
for identification. Only thenwording of the first paragraph
was changed, as the other ffve paragraphs were re-enacted
in fdentfcal language., For identification the sfx paragraphs
were lettered (a), (b), (c), (d), (e) and (f).
     Before the amendment of   the   first paragraph /?iowparagraph
(a179 ft read as follows:
          "Set, 15. The Board Board of Pardons and
     Paroles7 fs hereby authorrzed to release on parole,
     with tTieapproval of the Governor, any person con-
     fined in any penal or correctional institution of
     this State, except persons under sentence of death,
     who has served one-fourth of the maximum sentence
     imposed, provided that fn any case he may be
     paroled after serving fifteen years, Time served
     shall be a total calendar time served and all
     credits allowed under the laws governing the
     operation of the Department of Correctfons, and
     executfve clemency, All paroles shall fssue
     upon~order of the Board8 duly adopted and ap-
     proved by the Governor.
                          ,s450-
Hon. Pat Bullock, Page 2 (M-100)



     By virtue of the amendment In   question   paragraph (a)
now reads as follows:
           “SectSon 15.  (a) The Board is hereby author-
     lzed to release on parole, with the approval of the
     Governor,  any person confined In any penal or cor-
     rectional Institution of this State, except persons
     under sentence of death, who ha@ served one-third
     of the maximum sentence imposed, provided that in
     any case he may be paroled after serving 20 calen-
     dar years. Time served on the sentence imposed shall
     be the total calendar time served and all credits
     allowed under the laws governing the operation of
     the Department of Corrections, and executive clemency.
     All parolee shall issue upon order of,,theBoard, duly
     adopted and approved by the Governor.
     The only change made in the first sentence of said para-
graph was the substitution of the word “one-third” in lieu
of the word “one-fourth”, and the substitution of the words
“20 calendar years” in lieu of the words, “fifteen years.”
The only change made in the second sentence was the substi-
tution of the words, “on the sentence imposed shall be the
total calendar time served” fn lfeu of the words, “shall
be a total calendar time served.’ The third and last sen-
tence was not changed by the amendment.
      The changing of the verbiage of safd~first sentence re-
quires a person eonffned in the State Penal and Correctional
Institutions to serve one-thlrd:of the maximum sentence im-
posed (Instead of one-fourth thereof) to be eligible for
parole.n The adding of the word “calendar” before the word
 years9 in our opinion adds nothing to the meaning of the
first sentence, as a year is composed of 365 days and a
calendar year means a duration of time equal to 365 days.
A leap year is a “calendar year”, notwithstanding that a
leap iear has,366 da s. ExeParte Johnson, 53 A&.     161,
87 Pac. 2d 107 (1939T D We hold that the mere insertion by
the Legislature of the word “‘calentiar”‘e&ore Y?k wWr% “.j%%Yrr
In the statute did not have the effect of changing Its legal
meaning, particularly in vfew of the fact that the Legisla-
 ture In the sentence immediately following reenacted wfth-
out change the same provision for computation of time for
parole as had obtained in the past. ‘Year” or “calendar
 year have the same legal meaning. Ex Parte Neisler, 126
.    .




Hon. Pat Bullock, Page 3   (M-100)


Tex.Cr. R. 26, 69 S.W. 2d 422 (1934); Selbert v. Sally, 238
S.W. 2d 266 (1951):
             . _- ._ Article 23. Sects. 15 and 16, V 0C 0S 0:
86 C.J.S. 832, Time, Sect. 9.--Furthermore, change of the
one clause in the second sentence cannot in any manner change
the meaning of the sentence as contained In the paragraph be-
fore the amendment, as both clauses, although not In the
Identical verbiage, have the same meaning.
      It appears from a memorandum and letters submitted to
us that the question has arisen as to whether this amendment
will require that a person with a life sentence be confined
for twenty years (exclusive of credits for good conduct, ln-
dustry and obedience) prior to his being eligible for parole.
To conclude that the first eentence of paragraph (a) requires
a confinement of twenty calendar years, exclusive of good
conduct credits, 1s to Ignore the second sentence of said
paragraph. The second sentence Is a definition of the term
 'time served" and includes both 'calendar time" and "all
credits allowed," which clearly refers to credit for good
conduct. The term "saved" appears before the word "one-thlra"
and a form of the same verb, to-wit, "serving" appears before
the words "twenty calendar yeare." It Is therefore evident
that the definition applies equally to the one-third pro-
vision and the twenty calendar year Provlslon. Therefore,
such definition discloses that the Legislature Intended that
good conduct credits were to be allowed under both the one-
third and the twenty calendar year provisions.
     Furthermore, It Is an elementary rule of statutory con-
struction that etatutes dealfng with the same general sub-
ject, or thing or class of persons or things, are considered
in pari materla though they contain no reference to one another,
                        QQed at different times or at different
and though they were parL
sessions of the Laglslature. 53 Tex. Jur. 280, Statutes, Sec.
186, and cases cited. The purpose of the pari materla rule of
construction Is to ascertain the legislative intent by giving
effect to all laws and provisions bearing on the same subject.
Id. In this connection, we have construed the amendment in
zestion with Article 6184L, Vernon's Civil Statutes, which
was not amended, repeaLed or modified, and which Article pro-
vides for commutatlon'of time of prisoners for good conduct,
industry and obedience in order to encourage prison discipline.
This statute, Includes all prisoners, whether they are serving
sentences for a term of years or a sentence for life.


                       - 452 -
Hon, Pat Bullock, Pa,ge4   (M-100)


     Prior to the enactment of Article 42,12, Section 15,
by the 59th Legislature In 1965# wherein it wa,sspecifically
provfded that credft ‘for ea,rnedgood time would be a,llowed
for parole under the provision “after serving fffteen years,”
The Adult Probatfon and Parole Law of 1947 (Article 7&b,
C.C,P.> Sectfon 12) and The Adult Probation Law of 1957
(Article 781d, C.C.P.> Section 15) had provided for parole
a.fterserving “fifteen years” but there wa.sno specific statu-
tory provfsion or authority under these statutes for allowing
credit for good time served, Yet, the departmental practice
and construction was consistently followed so as to allow the
same, evldentfally by virtue of Article 6184Le As early as
1943, with the enactment of Article 6184L, the Board of Par-
dons and Parolesp the Office of the Covernor of Texas> and
the prison authorities charged with the administration of
the law, have followed such practice and construction. Since
1965, these officials have likewise uniformly so construed
the sentence in Artfcle 42.12, Section 15, “Time served on
the sentence imposed shall be the total calendar time served
and all credits allowed under the laws governing the opera-
tion of the Department of Corrections and executive clemency.”
This construc~tionwas that all convicts, including those sen-
tenced for life, were eligible for parole after they ha,d
served the designated portion of the .maxlmum sentence, which
lnclu.dedca,lenda.r
                  tfme served and credits a,llowedfor good
conduct0 It also means that a person who is given a long
term in prison, and those who recefve a life sentence, will
only ha,veto serve l/3 or l/4 of the sentence, or fifteen
or twen,tyyears* whfchevex-is less,
     This construction Is evidenced In Ex Parte Anderson,
149 Tex, Cr. R, 139,~192 S.W, 2d 280 (lwb), wherein it was
a.lsoheld that co&uta,tion rights earned for parole under
the statute will be protected by our courts, If the statute
be subject to construction, the applicable rule still obtains,
both in civil and fn crimina.1cases, that penal statutes are
to be strictly construed against the state and in favor of
the accused or prdsoner, 53 Tex, Jur. 2d 304, Statutes,
Set, 198, In add%tion, the long standing departmental prac-
tice and interpretation of this statute, construed together
with Article 6184L, whloh was enacted in 1943, is entitled
to great weight in the courts, particularly where valuable
rights, interests, OP contracts have been acquired or earned
thereby. 53 Tex, Jur, 2d 259, 260-261, Statutes, Set, 177.
Hon. Pat Bullock, Page 5.’ (M-100)



It isthere~ pertinently stated in part:
          “The courts will ordinarily a,doptand uphold
     a construction placed on a statute by an executive
     officer or department charged with Its adminls-
     tration, If the statute is ambiguous or uncertain,
     and If the construction so given It is reasonable.
     In other words> the judiciary will adhere to an
     executive or departmenta, construction of an am-
     biguous statute unless It Is clearly erroneous
     or unsound . . e -”
     In the case of TexansEmployers Ins. AssIn. v, Holmes, 196
S.W. 2d 390, 145 Tex. 1% (194b), the court st?ated:
     “The Legislature Is presumed to have known the
     construction given this statute by the Industrla.1
     Accident Board and the courts, and by thus amending
     the statute a.tIntervals in the manner above stated,
     the Legislature endorsed the construction thereto-
     fore given the sta,tute,by the Industria~lAccident
     Board. Also, by the adoption of the Revised Civil
     Statutes of 1925 the Legislature left no doubt about
     its construction of this Act when It re-enacted
     Section 12 without cha,nge,after its construction
     by the Industrial Accident Board a,ndthe refusal
     of a writ of error by this Court in the Ferguson
     case. The construction given an original Act should
     be rega,rdedas havfng been brought forward in amend-
     ments to the Act, If the a,mendmentshave not obviously
     changed such construction, and the construction to be
     given a re-enacted statute should be the same a,sthat
     given to the original Act, and,a different construction
     will be given only for impelling reasons.’
This rule Is also followed In the recent Supreme Court case of
Humble 011 and Refining Co. v. Calvert, 414 S.W, 2d 172 (1967).
     Since 1943, the Legislature has met eleven times in regular
sessions twice amending the statute (1945 and 1949) without
making any change in language concerning the computation of
time served rendering a person eligible for parole. Not only
did the Legislature have actual knowledge of the departmental
practice when in 1965 it specifically adopted it and wrote
                                                              ,   A




Hon. Pat Bullock, Page 6      (M-100)


It into Article 42,12, Section 15, but also under the settled
canons of construction, the Legislature is presumed to have
acquiesced in such construction and departmental practice in
falling to change the statute in a manner clearly disallowing
good time served for parole ellglbllity. 53 Tex. Jur, ?a 265,
Sta,tutes,Set, 178.
     Based on the above, we are of the opinion that the recent
a,mendmentto the first paragra.phof Section 15 of Article 42.12
provided that a,convict would be eligible for parole after ser-
ving one-third of his sentence or twent yea,rsless time al-
lowed for good conduct under Article 61ii
                                        4L. Had.the Leglsla,ture
intended that persons serving life sentences would not be en-
titled to credit for good conduct, it would surely have so
provided by clear and explicit language,
                        SUMMARY
         In view of the necessity of construction of
         Senate Bill 145, 60th Legislature, in amending
         Section 15 of Article 42.12, Vernon's Code of
         Crimlna,lProcedure, and the pa.stdepa.rtmental
         Interpretation or construction, the Legisla,ture
         made only two changes in the parole law, viz.,
         that convicts would not be eligible for parole
         until they ha,veserved one-third of the maxi-
         mum sentence imposed or twenty years, less
         time allowed for good conduct.

                                        J@y    truly yours,


                                                   C, MARTIN
                                              rney General of Texas

Prepared by Robert E, Owen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE                                .
Hawthorne Phflllps, Chafrman
Kerns B, Taylor, Co-Chairman
W, V. Geppert
Robert Darden
Monroe Clayton
Harold Kennedy
STAFF LEGAL ASSISTANT
A. J. Ca.rubbi,Jr,
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