Untitled Texas Attorney General Opinion ( 1991 )

@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 Howew, seaions 8(b)(2) through s@)(5) were subsequcnlly repealed.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.
p. 227
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
p. 229