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DAN MORALES
 Al-KmNEY
      GENERAL


                                       September 241991




 Honorable Allen Hightower                   Opinion No. DM- 45

 Chnmittee on Corrections                    Re: Whether the amendment ‘to article
 Texas House of Representatives              42.18 of the Code of Criminal Proce-
 P.O. Box 2910                               dure regarding the mandatory time that
 Austin, Texas 78768-2910                    inmates must serve prior to eligibility
                                             for parole is retroactive (RQ-65)

 Dear Representative Hightower:

         Your question references amendments to the Code of Criminal Procedure
 adopted by the 70th Legislature. Specifically, section 8(b) of article 42.18 of the
 Code of Criminal Procedure was amended to reduce the time necessary to be served
 before parole eligibility for certain prisoners. Acts 1987, 70th Leg., ch. 384, 0 5, at
 1889. You ask whether this change applies only to inmates convicted after the
 effective date of the amendment. We conclude it does not.

        We first consider whether any constitutional provision bars the retroactive
 application ~of article 42.18, section 8(b). The federal Constitution forbids the
 enactment of a law which imposes a punishment for an act which was not punishable
 at the time it was committed or imposes additional punishment to that previously
 prescribed. U.S. Const. art. I, 8 9, cl. 3; id 9 10, cl. 1. Laws affecting eligibility for
 early release are subject to’the er post fhcro prohibition of the federal constitution.
 Weaverv. Gmham, 450 U.S. 24 (1981). A law is impermissible if it

             substantially alters the consequences attached to a crime
             already completed, and therefore changes ‘the quantum of
             punishment.’

 Id at 33, citing Dobbert v. Floridu, 432 U.S. 282,293-94 (1977). Under the federal er
 postfact   doctrine, a retrospective penal law can only be constitutionally applied to




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Honorable Allen Hightower - Page 2              (DM-45)




a prisoner if it is not to his detriment. Id.

       The Texas Constitution also prohibits erpostfucto laws. Article I, section 16,
of the Texas Constitution reads as follows:

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

This provision goes further than the federal Constitution in that its prohibition is not
limited to retroactive penal laws, but extends to any retroactive law. In an early case
interpreting the meaning of the prohibition against retroactive laws in article I,
section 16, the Texas Supreme Court stated:

            The making of it evidences an intention to place a further
            restriction on the power of the legislature; and it must be held
            to protect every right, although not strictly a right to property,
            which may accrue under existing laws prior to the passage of
            any, which, if permitted a retroactive effect, would take away
            the right. A right has been well defined to be a well-founded
            claim, and a well-founded claim means nothing more nor less
            than a claim recognized or secured by law.

Mellinger v. City of Houston, 3 S.W. 249,253 (Tex. 1887). In Turbeville v. Gowdy, 272
S.W. 559,561 (Tex. Civ. App.-- Fort Worth 1925, no writ), the court stated:

            A statute is retroactive which takes away or impairs vested
            rights acquired under existing laws, or creates a new obligation,
            imposes a new duty, or adopts a new disability in respect to
            transactions or considerations already passed.

        We do not think the restriction on the power of the legislature found in
article I, section 16, of the Texas Constitution is intended to limit the application of
legislation where no detriment or impairment of a right ensues. Thus, we conclude
that neither the Constitution of the United States nor that of Texas prohibits the
application of section 8(b) to inmates convicted of offenses committed before its
effective date.




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Honorable Allen Hightower - Page 3            (DM-45)




        This conclusion tkds support in the amendments to the Code of Criminal
Procedure enacted by the 70th Legislature. Certain provisions of the 1987
amendments to the Code of Criminal Procedure, which may operate to increase
punishment to prisoners, are expressly limited to prisoners convicted of crimes
committed after the effective date of the amendment. See Acts 1987,7Oth Leg., ch.
384, 89 7 - 9, at 189-91; Acts 1987,7Oth Leg., ch. 1101, $5 18, 19, at 3767-68. These
                                  .
limitations are necessary to avotd impermissible ex post facto effects. No such
limitation was made to the effect of the amendments to section 8(b)(l) of article
42.18 which reduce the time a prisoner must serve before becoming eligible for
parole.

     In an article published in the South Texas Law Review, Professor John M.
S&mole&y of St. Mary’s University School of Law discussed the application of the
amendments to section 8(b):

                It appears that only one of the major amendments by the
           Seventieth Legislature discussed in this article would apply
           retroactively: the change in parole eligibility from one-third oft
           the sentence imposed or twenty years to one-fourth of the
           sentence imposed or fifteen years. Because this enactment is
           beneficial to inmates, it is not subject to the ex post facto
           doctrine. Furthermore, the legislature apparently intended
           retroactive application because the statute contains no
           provision that the earlier parole eligibility date should only
           apply to inmates after the effective date of the Act, and several
           other amendments are expressly designated~ for prospective
           application. Thus, it appears that the immediate impact of the
           amendments of the Seventieth Legislature discussed in this
           article will be the availability of an earlier release from custody
           for many members of the present prison population despite the
           apparently more punitive thrust of much of the legislation.

S&mole&y, Time Changes: Growing Complerity in Texas Sentencing Law, 30 S.
TEX. L. REV. 283,299-300 (1989) (Ex Post Facto Doctrine).

        We agree with Professor Schmolesky’s conclusion with respect to the change
in the time required to be served before parole eligibility. Because its effect is not




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Honorable Allen Hightower - Page 4            (DM-45)




detrimental to the affected prisoners, it runs afoul of neither the ex post facto
doctrine nor the restriction against retroactive laws found in article I, section 16, of
the Texas Constitution. This change applies to prisoners without respect to the time
of the commission of the crime or the date of conviction.

                                   SUMMqBY

                      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 not limited with respect to the time
              the crime was committed or the date of conviction.

                                                   Very truly yours,




                                                   DAN      MORALES
                                                   Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General




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