Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
MARK WHITE April 29, 1981
Attorney General
Honorable Oscar H. Mauzy Opinion No. Pm-330
Chairman
Senate Committee on Jurisprudence Re: Whether trial judge may con-
Texas Senate, State Capitol stitutionallv instruct jurors about
Austin, Texas 78711 the possi&e effects of good
conduct time and parole time
Dear Senator Mauzy:
You have requested our opinion as to whether a trial judge may
constitutionally instruct jurors about the possible effects upon a prisoner’s
sentence of parole and good conduct time. We sssume that your question
refers to proposed legislation which may permit or require such instruction,
although you have not submitted to us any specific proposal.
Texas law on the subiect of iurv discussion of oarole matters has lone
~“~
been uncertain and confused. %he Texas Co&i of Criminal ~Appeag
acknowledged this circumstance in Heredia y.~ State, 528 S.W.2d 847, 8 _-
(Tex. Crim. App. 1975):
The cases. . . establish that there has been an
inconsistency of standards. Authority may be cited
for a standard requiring a showing that (1) a
misstatement of the law (2) asserted as fact (3) by
one professing to know the law (4) which is relied
upon by other jurors (5) who for that reason change
their vote to a harsher punishment, before reversible
error is shown; but likewise authority may be cited
which would require only a showing that a statement
on the parole law was made and it was either untrue
or it was harmful.
The court then discussd the “statutory foundation upon which the issue
ultimately rests,” article 40.03 of the Code of Criminal Procedure, which
provides that new trials in felony cases shall be granted, inter alia:
7. Where the jury, after having retired to
deliberate upon a case, has received other evidence;
. . .
8. Where, from the misconduct of the jury, the
court is of the opinion that the defendant has not
received a fair and impartial triaL
p. 1061
Honorable Oscar H. Mauzy - Page Two N-330)
The court indicated that some previous decisions had said that jury discussion of the
parole law violates subdivision (7) of article 40.03, in that the jury has “received other
evidence” relating to the parole law. See Springs v. State, 268 S.W.2d 191 (Tex. Crim.
App. 1954). Other decisions had said that such jury discussion contravenes subdivision
(8), by denying a defendant “a fair and impartial trial” -See Mays v. State, 320 S.W.2d
13 (Tex. Crim. App. 1959).
The Heredia court believed that either statutory provision might be applicable to
jury discussion the parole law. 528 SW. 2d at 852. The mere mention of the
existence of the law is not prohibited by subdivision (7), but a misstatement of the law
always violates that provision. & at 852-53. Under the reasoning of Heredia, a
statute instructing the jury on the parole law would cure any problem arising under
subdivision (7), however. Since the jury would be apprised of the parole law as part of
its charge, discussion of it could not constitute receipt of “other evidence.”
As to subdivision (8) of article 40.03, the Heredia court said that discussion of
the parole law is always jury misconduct, because the parole law is not for the jury’s
consideration. & at 853. Again, however, the mere mention of it is not sufficient to
deprive a defendant of “a fair and impartial trial” Likewise, a discussion of the law,
followed by an instruction that it should not be further discussed, is not violative of
subdivision (a), provided the law is not discussed after the instruction. J&. The court
emphasized that the “degree of misconduct” sufficient “to deny the defendant a fair
and impartial trial must be determined upon the facts of the individual case.” Id. As
to the particular facts of Heredia, the court concluded that, under either subd=sion
(7) or (81, no reversible error occurred. Id.
-
Although the court in Heredia alluded in a footnote to a possible constitutional
basis for the standard that it announced, 528 S.W.2d at 853 n.4, the decision really
rests upon the statutory language of subdivisions (7) and (8) of article 40.03. Since,
however, the standard of subdivision (8) is that of “fair and impartial trial,” that
statute. incorporates a constitutional basis for the prohibition against jury discussion of
the parole law. To the extent that such discussion denies a defendant a “fair and
impartial trial,” it contravenes article I, section 19 of the Texas Constitution, the due
process clause, see Vogt v. Bexar County, 23 S.W. 1044, 1046 (Tex. Civ. App. 1893, writ
rePd) and commentary to article I, section 19, at 447, and article I, section 10, which
guarantees every criminal defendant “a speedy public trial by an impartial jury.” If
jury discussion of the parole law is sufficient to deprive a defendant of a fair and
impartial trial, a statute requiring instruction on that issue, which would in effect
authorize such discussion, might, in light of Heredia, be insufficient to overcome the
constitutional prohibition. Subsequent decisions from the court of criminal appeals,
however, indicate that such a statute, if properly limited, might satisfy the
constitutional standard.
Heredia was followed three years later by Sanders v. State;580 S.W. 2d 349 (Tex
Crim. App. 1978), in which the court found that a jury had discussed the parole law
extensively and that the discussion had affected jury deliberations on the issue of
whether to grant or deny probation. 580 SW. 2d at 351. By a 2-l vote, the court
affirmed its decision in Heredia, concluding that the jury’s discussion was harmful and
p. 1062
Honorable Oscar H. Mauzy - Page Three @M-3301
that it denied the defendant a “fair and impartial trial” under subdivision (8). The
court went further, however, and articulated “the constitutional basis for the
established rule that discussion of the parole law is always jury misconduct.” 5 at
352. The court declared:
It would be improper for punishment to be based on an
expectation that clemency powers would be exercised, and it
would be unconstitutional to attempt to delay the exercise of
the clemency powers or to avoid the possible granting of parole
by increasing punishment in anticipation thereof. Article II,
Sec. 1 of the Texas Constitution provides for the separation of
governmental powers among the three distinct departments, the
executive, legislative, and judicial. It is well established under
this Article that:
‘[Al power which has been granted to one department of
government may be exercised onlv bs that branch to the
exclusion of thebthers. . . . And any attempt by one department
of government to interfere with the powers of another is null
and void.’ Ex parte Giles, Tex. Cr. App., 502 S.W.2d 774;
Smith v. Blackwell, Tex. Cr. App., 500 S.W.2d 97. (Emphasis
added)
Clemency powers embodied in the parole system are beyond the
reach of interference by the judicial branch, Art. IV, Sec. ll,
Texas Const; and any action by the judicial branch to frustrate
or delay the exercise of that power by the executive branch is
as much of an unconstitutional interference as is an attempted
usurpation of that power. . . .
This is the constitutional basis for the established rule that
discussion of the parole law is always jury misconduct. The
issue remains, whether, in the terms of Art 40.03(8), supra, the
misconduct here was such that ‘the court is of [the] opinion that
the defendant has not received a fair and impartial trial’
5 at 351-52.
Although the court again relied upon subdivision (8) of article 40.03, and found
that the discussion deprived the defendant of a fair and impartial trial, it did not refer
either to article I, section 19 or to article I, section 10 of the Texas Constitution, nor
did it imply that the right to a fair and impartial trial is a constitutional right
guaranteed to a defendant. Instead the court found the constitutional basis of its
decision in article II, section 1 and article IV, section 11 provisions which relate to the
distribution of power among the three branches of government, and would seem to be
in no way related to a defendant’s right, constitutional or otherwise, to a fair and
impartial triaL Nevertheless, the result of Sanders is clear: a statute which
encouraged extensive discussion of the parole law by a jury would be deemed
p. 1063
Honorable Oscar H. Mauzy - Page Four (MK-330)
unconstitutional by the court of criminal appeals as an interference by the judicial
branch with the clemency powers committed to the executive branch.
Since it is only extensive discussion of the parole law and reliance by one or more
jurors on that discussion in determining punishment that the court considers to
contravene the constitution, it seems likely that a statute permitting or requiring the
court to apprise the jury of the parole law would be held constitutional under the
Sanders rationale so long as the judge admonished the jury not to discuss it.
More than a year after the 2-l decision in Sanders, the full court, by a 5-4
margin, overruled the state’s motion for rehearing without written opinion. Judge
Dally, speaking for four members of the court, dissented from the decision to overrule.
His opinion is instructive.
Judge Dally began by summarizing the majority ruling in Sanders: “if there is
extensive discussion of the parole law and a juror testifies that he changed his vote the
judgment will be reversed.” 580 S.W.2d at 356. Judge Dally noted that “the
inconsistency mentioned in Heredia. . . has persisted since Heredia was decided.” g
at 357. He suggested a return to the pre-Heredia test, which holds that, in order to
demonstrate reversible error, “it must be shown that there was:
(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied upon by other jurors
(5) who for that reason changed their vote to a harsher
punishment.”
g
If the minority view in Sanders were to be adopted by the court, virtually any
statute either permitting or requiring the trial judge to advise the jury about the
parole law would be acceptable, since the minority test requires initially that, in order
to show reversible error, there must occur a misstatement of the law. Any statute
that required instruction to the jury about the parole law would presumably require an
accurate recitation of that law. So long as the statute did not itself require or permit
a misstatement of the parole law, it would satisfy the minority test of Sanders. -But
see
- Farris v. State, 535 S.W. 2d 608 (Tenn. 1976).
Since Sanders, the court of criminal appeals has rendered a number of further
decisions regarding jury discussion of the parole law, decisions which may arguably be
termed inconsistent. See, e.g., Nacol v. State, 590 SW. 2d 481, 486 (Tex. Crim. App.
1979); O’Br an v. State, 591 S.W.2d 464, 478 (Tex. Crim. App. 1979); Jones v. State, 596
S.W. 2d -. 134, 138 Tex. Cnm. App. 1980). But neither the Heredia-Sanders test nor the
p. 1064
Honorable Oscar Ii. Mauzy - Page Five (MVdli-330)
Sanders constitutional rationale has been repudiated, and we are obliged to conclude
that the test remains operative. As a result, we believe that some version of a statute
advising a jury about parole and good conduct time would probably be upheld as
constitutional by the court of criminal appeals, so long as the limiting safeguard,
discussed s, was present.
We must note, however, two significant reservations regarding this conclusion:
the separation of powers rationale relied on in Sanders is not logically compatible with
this result - it ought to preclude the mere consideration of the parole law by a juror;
and, if the dissenting view in Sanders were to prevail, no limiting safeguards would be
required for a parole instruction statute to pass constitutional muster.
Our consideration of your inquiry is further clouded by the Supreme Court of
Tennessee’s 1976 decision in Farris v. State, 535 S.W. 2d 608 (Term. 1976), which you
have asked us to discuss In that case, the court held unconstitutional a statute which
required a trial judge to “charge the jury with respect to parole eligibility, certain
powers and duties of the Board of Pardons and Paroles, good behavior allowances, and
the allowance of honor time.” 535 S.W. 2d at 609. Although the court found the
statute invalid in part because of a caption defect, it also held it to be “impermissibly
vague and impossible to apply. ” -Id at 613. The court then noted that:
1jl urors of reasonable or common understanding and intelligence
are not capable of understanding the various ramifications of
the parole system.
g As the concurring opinion points out, the court can’t mean that the statute
requiring trial judges to charge juries about the parole law is vague:
its mandate to trial judges is plain enough. In my view, the
vagueness and confusion to which Mr. Justice H,enry refers
relates to the instructions regarding parole eligibility, etc.,
which Chapter 163 would require trial judges to give to juries
trying felony cases.
5 at 615.
To complicate matters, the court also raised the fair trial issue, and, like the
Texas Court of Criminal Appeals, it failed to refer to any constitutional basis therefor:
Jurors should not be permitted to speculate on the length of
sentences, discretionary parole, the accumulation of good and
honor time and a whole conglomeration of contingent events
which, if they come to pass at all, will come to pass in the
future. Very heavily involved is the constitutional right of a
defendant to a fair triaL
This is trial ‘by guess and by golly,’ and we will not
countenance it by upholding a statute which offends every sense
of fairness and every precept of due process.
p. 1065
Honorable Oscar H. Mauzy - Page Six (m-330)
It tends to make a jury speculate on the length of time a
convicted defendant will be required to serve and further tends
to breed irresponsibility on the part of jurors premised upon the
proposition that corrective action can be taken by others at a
later date. A greater defect in the law stems from the fact
that jurors tend to attempt to compensate for future clemency
by imposing harsher sentences.
The matter of the future disposition of a convicted
defendant is wholly and utterly foreign to his guilt and is not a
proper consideration by a jury in determining the length of his
sentence.
Id. at 614. None of this discussion has any relevance to the court’s ostensible reason
G holding the statute unconstitutional - vagueness; but it comes close to the largely
unarticulated “fair trial” rationale of Heredia and Sanders. In our opinion, the Texas
Court of Criminal Appeals would not adopt the reasoning of Farris which relates to
vagueness. But the court could certainly rely on the language relating to fair trial to
void any statute which failed to contain the limiting safeguards previously discussed.
The present state of the law relating to the inquiry you have submitted is
sufficiently uncertain as to preclude any confident prediction about how the court of
criminal appeals might rule on a particular statute. We believe it is instructive to note
that no constitutional problem appears to exist under the Federal Constitution; in any
event, no court has even suggested that advising a jury about parole might contravene
any portion of the United States Constitution. The court of criminal appeals has a
choice of state constitutional doctrines, however, with some support in decisional law,
including separation of powers, vagueness and due process, which it may rely upon to
invalidate a statute which requires or permits a jury instruction about parole and good
conduct time. We believe that, at present, the court would be likely to uphold such a
statute, so long as it required the judge to admonish the jury not to discuss the subject.
SUMMARY
The courts would be likely to uphold a statute which
authorizes a ju@e to instruct jurors about the possible effects
upon a prisoner’s sentence of parole and good conduct time, so
long as it required the judge to admonish the jury not to discuss
the subject.
MARK WHITE
Attorney General of Texas
p. 1066
Honorable Oscar H. Mauzy - Page Seven (bw-330)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Bruce Youngblood
p. 1067