                          @ffice of tty !&tornep tkiecal
                                  Watt of &txae

                                    November 27,199l


Honorable Allen Hightower                       Opinion No. DM- 4SB
chalrman
Committee on Corrections                        Re: Whether the amendment to article
Texas House of Representatives                  42.18 of the Code of Criminal Procedure
P.O. Box 2910                                   regarding the mandatory time that
Austin, Texas 78768-2910                        inmates must serve prior to eligibility for
                                                parole is retroactive (RQ-65)

Dear Representative Hightower:

        You ask a question about certain amendments to section 8(b) of article 42.18
of the Code of Criminal Procedure adopted by the 70th Legislature. Section 5 of
House Bill 680 and section 7 of Senate Bill 341 of the 70th Legislature amended
section 8(b) to reduce the time that certain.prisoners had to serve before being
eligible for parole. H.B. 680, Acts 1987, 70th Leg., ch. 3&t, 3 5, at 1889; S.B. 341,
Acts 1987, 70th Leg. ch. 1101, 5 7, at 3754. You ask whether this change applies
only to inmates convicted after the effective date of the amendment. We conclude
that it does.

         House Bill 680 does not limit the effect of its reduction of the time necessary
 to be served before parole eligibility with respect to the time of the commission of
 the crime for which the prisoner was sentenced.1 Because its effect is not
 detrimental to the affected prisoners, application of this change in the law to
 prisoners convicted of crimes committed before its effective date would run afoul of
 neither the a post  fucfodoctrine nor the restriction against retroactive laws found in
 article I, section 16, of the Texas Constitution. U.S. Const. art I, 0 9, cl. 3; id. 0 10.


          %stion S of House Bii 669 also amended s&on 8(b) by adding seaions 8(b)(2) ~hrougb
 8@)(S). The changes made by the addition of these subsections were spccirrcaUymade applicable only
 to prisoners conkted of olhses committed on or after the cffeaivc date of the aa. Aas 1987, 70th
 kg., ch. 384, 5 g(a). Howew, seaions 8(b)(2) through s@)(5) were subsequcnlly repealed. Aas
 1989.71w Leg.. ch. 785,$5.01 at 3536.




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Hooorable Allen Hightower - Page 2                  (DH-ISB)




CL1; Weaverv. GM,     450 U.S. 24 (1981);M~llingerv. Ciryof Houston, 3 S.W. 249
(Rx. 1887); Twtwvillev. Gondy, 272 S.W. 559 (Tex. Cii. App.-Fort Worth 1925,no
writ). Therefore, considered alone, the change in the time necessary to be served
before parole eligibility effected by section 5 of House Bill 680 would apply to
prisoners without regard to the time the offense was committed.          See also
Schmolesky, 77LneChanges: GrowingComplerityin Texas Sentencing Law, 30 S.
Tur L REV. 283,299.300 (1989) (ex post facto doctrine).

        However, Senate Bill 341 includes section 18(b), which expressly limits the
effect of the amendment to section 8(b) by section 7 of that bill to prisoners
sentenced for an offense committed on or after the effective date of the act. In
construing acts passed at the same legislative session, the courts will read them as
one act. Hendersonv. State, 758 S.W.2d 694 (Ten App.-Austin 1988, no writ). For
a later enacted provision to repeal a provision adopted earlier in the same session,
there must be express repeal or an irreconcilable repugnancy between them. Id
House Bill 680 was adopted after Senate Bill 341: but neither repeals nor conflicts
with the earlier enacted act. In regard to the reduction of the time necessary to be
served before parole eligibility, the later enacted act is silent as to its effect on
 prisoners sentenced for crimes committed before its effective date, and the earlier
 enacted act has an express provision making the change applicable only to prisoners
 sentenced for an offense committed after its effective date. Section 18(b) of Senate
 Bill 341 is the only express indication of the legislature’s intent regarding the effect
 of the amendments on prisoners with respect to the time an offense was cotmnittcd.3
 As we must harmonize the two bills we conclude that the application of the change
 made by the 79th Legislature reducing the time prisoners must serve before
 becoming eligible for parole is limited as provided by section 18(b) of Senate Bill
 341.




           *Senate Bi 341 was fmaUy adopted by the legislature on May 23.1987.    House Bii 680 was
  fmally adopted on May 25.1987.

         3Botb SCU.~CBii 341 and How     Bill 630 became &dive   OD   Sqtembcr   1.1987.




                                               p.    228
Ijonorable hen   Hightower - Page 3          (DW45Bl




                                   SUMMARY

             The effect of the 1987 amendments to article 42.18.
             section 8(b). of the Code of Criminal Procedure
             reducing the time prisoners must serve before becoming
              eligible for parole is limited to prisoners convicted of
              offenses committed on or after the effective date of the
              amendments.




                                                   DAN      MORALES
                                                   Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

 MARY KELLER
 Deputy Assistant .kzomey General

 JUDGE ZOLLIE STEAKLEY (Ret.)
 Special Assistant .ktomey General

 RENEA HICKS
 Special Assistant .\:tomey General

 MADELEINE B. JOHSSON
 Chair, Opinion Coxrnittee

 Prepared by John S:eine:
 Assistant Attorney- General




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