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                             THE        ATTORNEY                   GENERAL
                                            OF       TEXAS

         JOHN    L.   alI&
                                         AI~TIN.TEXAS             78711
       *3-rcDRNEY o-*x.
                                                     June 26,      1973


                 The Honorable  William H. Sk&on,  Chairman                   Opinion No.   H- 53
                 Board of Pardons and Paroles
                 Room 501, John H. Reagan Building                            Re:   Application  of amend-
                 Austin, Texas 78701                                                ment to Article 4.2. I2
                                                                                    of Texas Code of
                 Dear Mr.    Skelton:                                               Criminal Procedure

                        Your letter requesting our opinion concerns the effect of amendments
                 to Article 42.12,   $15 of the Texas Code of Criminal Procedure   which be-
                 came effective on August 28, 1967.     Prior to the amendment,  the section
                 provided,  in part:

                                     “The Board [of Pardons and Paroles]      is hereby
                              authorized to release on parole,    with the approval of
                              the Governor,   any person confined 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.    . . . ”

                      Acts 1967, 60th Legs.,    p.    1745,      Ch.   659,   greatly   expanded    $15 which
                 now provides in subsection  (a) :

                                     “The Board is hereby authorized to release on
                              parole with the approval of the Governor,    any person
                              confined in any penal or correctional  institution of
                              this State, except persons under sentence of death,
                              who has served one-third   of the maximum     sentence
                              imposed.   . . .‘I

                        Your letter raises the question of the propriety of applying the amended
                 provision to persons tried prior to the effective date of the amendment but
                 sentenced thereafter.




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        The Honorable            William   H. Skelton,    page 2   (H-53)            ,


                   .     .
                                                                                           I

               Article  1, $ 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. ” An ex post facto law has been
        defined as one:

                             .   which makes an act done before its
                                 .   .

                        passage and which was innocent when done,
                        criminal;   or which aggravates   a crime and
                        makes it greater than when committed;        01
                        which changes the punishment and inflicts a
                        greater   punishment than the law annexed to
                        the crime when committed;      or which 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.    . . . ” Holt
                        v. The State, 2 Tex. 363, 364 (1847)(em‘;;i;;;8is
                        added)

               In Lindsey v. State of Washington,    301 U.S. 397, 81 L. Ed. 1182
        (1937), the statute governing the conditions of parole,    etc., was amended
        between the time of the commission     of the offense for which Lindsey was
        convicted and the time of his sentencing.     He was sentenced under the new
        law.   The Supreme Court held that the new law was more onerous making
        mandatory what before had only been a maximum         sentence and said:

                               “The Constitution forbids the application
                        of any new punitive measure to a crime already
                        consummated,    to the detriment or material dis-
                        advantage of the wrongdoer.    . . . It is for this
                        reason that an increase in the possible penalty
                        is ex post facto . . regardless    of the length of
                        the sentence actually imposed.    . . . ” (301 U. S.
                        at 4011

                  And see annotation,         increased   punishment    for crime,       167 ALR   845
        (1947).




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          The Honorable    William   H.   Skelton,    page 3   (H-53)


                 .     .

                 In Ex parte Algeria,     464 SW. 2d 868 (Tex. Crim.    1971), Algeria
          was convicted in 1961 and was sentenced to imprisonment         for not less
        * than five years nor more than life under the indeterminate        sentence
          law then in effect [Art. 775, Vernon’s Annotated Code of Criminal
          Procedure,    (1925), now Article 42.09,      Vernon’s Annotated Code of
          Criminal   Procedure,     (1965)].  Prior to the 1967 amendments     to Article
          42.12 $15, a person serving a life sentence was eligible for parole
          upon accumulation     of credit for 15 years.    The 1967 amendment increased
          this to 20 years.    After reviewing numerous decisions      of the courts and
          other jurisdiction,   the Court of Criminal Appeals concluded:

                               “It is well settled that a legislative act
                       increasing    the sentence to be given an offender
                       for a crime committed       before the law is enacted
                       would be ex post facto and constitutionally     pro-
                       hibited. ” (464 S. W. 2d at 872)

                 It recognized   that a more complicated    question was presented when
          the enactment did not increase      the sentence but, in some other manner,
          altered the punishment to the detriment or disadvantage       of the person
          convicted.    It noted that application’of  the amendment of Article 42.12,
           5 15, to Algeria’s   sentence would require that he remain in confinement
          a greater length of time before being eligible for parole.      It said:

                               “Under both the federal and state constitutions,
                       the retroactive      application of the 1967 amendment to
                       Article   42.12,     815(a), supra, to this petitioner’s   life
                       sentence is violative of the ex post facto principle and
                       petitioner’s     eligibility  for parole is to be determined
                       in accordance       with former Article    781d. V. A. C. C. P.
                       in effect at the time of his conviction. ” (464 S. W. 2d
                       at 874 to 875)

                 It is, therefore,    our opinion that with reference    to the prisoner
          about whom you have inquired,        his sentence is to be served pursuantto
          the terms of the Code of Criminal       Procedure   in existence   at the time of
          the commission       of the crime and not as those provisions     were later
          amended.      In this~ case he need only serve one-fourth     of his time before,
          being eligible for parole.




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            The Honorable   William   H. Skelton,     page 4   (H-53)




                                           SUMMARY

                               The sentence to be imposed upon and the manner
                       in which it is to be served by a person convicted of a
                       crime is to be determined    by the statutes existing at
                       the time of the commission    of the crime,  and any effort
                       to invoke statutes later enacted is the imposition   of an
                       ex post facto law prohibited both by the Constitution of
                       the State of Texas and by the Constitution of the United
                       States.

                                                    Very truly yours,




                                                    Attorney   General   of Texas




            DAVID M. KENDALL,         Chairman
            Opinion Committ.ee




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