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

                                                                  FILED
                                                               December 13, 2007
                                No. 07-40172
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk
DAVID MICHAEL GORDON

                                            Plaintiff-Appellant

v.

GOVERNOR RICK PERRY; CHRISTINA MELTON CRAIN, Executive Director
of Texas Department of Criminal Justice in Dallas, Texas; BRAD LIVINGSTON,
Executive Director of Texas Department of Criminal Justice in Austin, Texas;
NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice
in Huntsville, Texas

                                            Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 5:06-CV-242


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      David Michael Gordon, Texas prisoner # 877573, is appealing from the
district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§ 1915A(b)(1). Gordon argues that he has a property interest in his earned good-
time credits and that it should be considered in determining the date of his
release. He argues that TEX. CRIM. PROC. CODE ANN. art. 37.07 § 4 creates a

      *
      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should not be published and is not precedent except under the limited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. 07-40172

property interest in good-time credits for inmates who are not entitled to
mandatory supervision release pursuant to TEX. CRIM. PROC. CODE ANN. art.
42.12 § 3g.
      “The Constitution does not guarantee good-time credit for satisfactory
behavior while in prison.” Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)
(citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). However, a state may
create a right to good-time credit. Id. Although jurors are instructed under
art. 37.07 § 4(a) that a defendant “may earn time off the period of incarceration
imposed through the award of good conduct time,” the instruction further states
that a § 3g defendant, such as Gordon, will not become eligible for parole until
he serves the actual time of a portion of his sentence, without consideration of
the good-time conduct that he earned. Thus, art. 37.07 § 4(a) does not conflict
with the Texas statutes that provide that good-time credits apply only to parole
eligibility, and it does not create a right to good-time credits that will reduce
Gordon’s sentence. Gordon has not provided any statutory basis creating a
property interest in his good-time credits that will result in a reduction of his
sentence. However, Gordon’s good-time credits are valuable because they will
be considered by the Parole Board when Gordon becomes eligible for parole. See
Espinosa v. Texas, 29 S.W.3d 257, 261 (Tex. App. 2000).
      Gordon’s challenge to the constitutionality of TEX. GOVT. CODE ANN.
§ 498.003 because it provides that good-time credits apply only to eligibility for
parole and mandatory supervision release is without merit because he has no
constitutional property interest in obtaining parole. Madison, 104 F.3d at 768.
For that same reason, a lack of a property interest, Gordon’s argument under the
Takings Clause of the Fifth Amendment is without merit. Chicago, B. & Q.R.
Co. v. Chicago, 166 U.S. 226, 236 (1897).
      Gordon has not made an arguable federal constitutional claim under the
Separation of Powers Doctrine because he is complaining about the acts of state
actors. See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957) Nor has he

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                                  No. 07-40172

shown that the Texas statutes governing good-time credits are bills of attainder
because they do not constitute the legislative determination of guilt and
infliction of punishment without the protection of a trial. See Nixon v. Adm’r of
Gen. Servs., 433 U.S. 425, 468 (1977).
      Gordon has not alleged a meritorious equal protection violation based on
his being treated differently from the non-violent inmates who are entitled to
release on mandatory supervision. “A classification that categorizes inmates
based on the type of criminal offenses for which they have been convicted does
not implicate a suspect class.” Wottlin v. Fleming, 136 F.3d 1032, 1036 (5th Cir.
1998). Thus, the rational basis test should be used to evaluate Gordon’s equal
protection claim. Id. at 1036-37. The State has a legitimate state interest in
prohibiting certain violent offenders from obtaining early release. See id. at
1037. Gordon’s equal protection claim is without merit.
      Gordon has not shown that he has been denied a state created property
interest in good-time credits to which he is entitled or that the Texas laws
governing good-time credits result in a constitutional violation on any other
basis. The district court did not err in dismissing the complaint as frivolous and
for failure to state a claim The dismissal of the complaint is AFFIRMED.
      Gordon’s motion for appointment of counsel and for class action
certification is DENIED.




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