                         REVISED January 23, 2009

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

                                     No. 07-40083                           FILED
                                   Summary Calendar                      October 7, 2008

                                                                     Charles R. Fulbruge III
WILLIAM JOSEPH GOODRICH                                                      Clerk


                                                  Plaintiff-Appellant

v.

BRAD LIVINGSTON; RISSIE L. OWENS

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:06-CV-156


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       William Joseph Goodrich, Texas prisoner #353147, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to
state a claim on which relief may be granted. In 1983, Goodrich was convicted
of aggravated rape, a violation of former TEX. PENAL CODE ANN. § 21.03 (Vernon
1987), and was sentenced to life imprisonment. Although § 21.03 is not listed


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40083

under TEX. GOV’T CODE ANN. § 508.046, Goodrich asserts that the Texas Board
of Pardons and Paroles (Parole Board) has adopted a rule making § 508.046
applicable to inmates convicted under § 21.03 as though they were convicted of
aggravated sexual assault, a violation of TEX. PENAL CODE ANN. § 22.021. He
argues that by applying § 508.046 to his 2005 parole hearing, the Parole Board
altered the definition of the crime of which he was convicted in violation of the
Ex Post Facto Clause.
      The district court’s dismissal of a complaint as frivolous is reviewed for
abuse of discretion and its dismissal for failure to state a claim is reviewed de
novo. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).               At the time of
Goodrich’s conviction, a prisoner needed the vote of only a majority of a
randomly-selected three-member Parole Board panel to be granted parole. See
TEX. CODE. CRIM. P. 42.12 § 14A(i) (Vernon 1979). However, under § 508.046,
effective September 1, 1997, a favorable vote of two-thirds of the entire Parole
Board was required to grant parole to certain offenders, including those
convicted of aggravated sexual assault. See § 508.046 (Vernon 2004).1
      As the district court noted, the Texas Court of Criminal Appeals has held
that the Penal Code section for aggravated sexual assault, § 22.021,
encompasses the conduct previously included in the aggravated rape statutes
and that aggravated rape, § 21.03, was the statutory precursor to aggravated
sexual assault. See Griffith v. State, 116 S.W.3d 782, 787-88 (Tex. Crim. App.
2003). Accordingly, the Parole Board did not violate the Ex Post Facto Clause
by applying § 508.046 to Goodrich because it did not alter the definition of the
crime for which he was convicted nor increase his punishment. See Collins v.
Youngblood, 497 U.S. 37, 44 (1990). Furthermore, this court has determined


      1
         Please note, the Parole Board’s size was reduced from eighteen to seven members
effective January 11, 2004, prior to November 2005 when Goodrich’s parole was denied. See
Tex. Gov’t Code § 508.031 (Vernon 2004).

                                           2
                                  No. 07-40083

that the Parole Board’s retroactive application of § 508.046 does not violate the
Ex Post Facto Clause because it is a discretionary rule addressing a prisoner’s
“suitability, not eligibility, for parole.” See Wallace v. Quarterman, 516 F.3d 351,
355-56 (5th Cir. 2008). Accordingly, the judgment of the district court is
affirmed.
      MOTIONS TO SUPPLEMENT & CORRECT BRIEF GRANTED;
JUDGMENT AFFIRMED.




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