Untitled Texas Attorney General Opinion ( 1974 )

EATTOE?.NEY GENEIZAL
OF TEXAS
AUSTIN. TEXAS 78711
February 25, 1974
The Honorable William H. Skelton, Chairman Opinion No. H- 240
Board of Pardons and Paroles
Room 501 John H. Reagan Bldg. Re: The persons to whom
Austin, Texas 78701 amendments to Article 42.12,
$ 22, Texas Code of Criminal
Procedure,may be applied
constitutionally.
Dear Mr. Skelton:
You have asked our opinion concerning the recent amendment to Article
42,12 5 22 Vernon’s Texas Code of Criminal Procedure which affects the com-
putation of time served on the sentence of prisoners whose parole has been
revoked.
Prior to June 14, 1973, section 22 of Article 42.12 provided:
‘Sec. 22. Whenever a paroled prisoner is accused
of a violation of his parole on information and complaint by
a law enforcement officer or parole officer, he shall be
entitled to be heard on such charges before the Board under
such rules and regulations as the Board may adopt; providing,
however, said hearing shall be held within forty-five days
of the date of arrest and at a time and place set by the Board.
When the Board has heard the facts, it may recommend to the
Governor that the parole be continued, or revoked, or modified
in any manner the evidence may warrant. When the Governor
revokes a prisoner’s parole, he may be required to serve the
portion remaining of the sentence on which he was released
on parole, such portion remaining to be calculated without
credit for the time from the date of his release on parole
to the date of his arrest or charge of parole violation. ”
p. 1113
The Honorable William H. Skelton, page 2 (H-240)
That section was amended by Acts 1973, 63rd Leg., ch. 447, p. 1235 and now
provides:
“Sec. 22. Whenever a paroled prisoner is accused
of a violation of his parole on information and complaint
by a law enforcement officer or parole officer, he shall
be entitled to be heard on such charges before the Board
under such rules and regulations as the Board may adopt;
providing, however, said hearing shall be held within
sixty days of the date of arrest under a warrant issued by
the Board of Pardons and Paroles or the Governor and
at a time and place set by the Board. When the Board has
heard the facts, it may recommend to the Governor that
the parole be continued, or revoked, or modified in any
manner the evidence may warrant. When the Governor
revokes a prisoner’s parole, he may be required to serve
the portion remaining of the sentence on which he was
released on parole, such portion remaining to be calcu-
lated without credit for the time from the date of his
release on parole to the date of his revocation of parole
by the Governor on the charge of parole violation. When
a warrant is issued by the Board of Pardons and Paroles
or the Governor charging a parole violation, the sentence
time credit shall be suspended until a determination is
made ‘by the Board of Pardons and Paroles or the Governor
in such case and such suspended time credit may be re-
instated by the Board of Pardons and Paroles should such
parole be continued. ”
The new statute institutes three major changes in the rights of a prisoner
whose parole is revoked. These are:
(1) The time in which a hearing must be held is extended from 45 to
60 days.
(2) After revocation, the remainder of the prisoner’s sentence is
served beginning at the time of revocation rather than the time of
arrest, a change which can cause an additional period to be served
of as much as 60 days.
The Honorable William H. Skelton, page 3 (H-240)
(3) Upon issuance of a warrant charging a parole violation, sentence
credit is suspended until a determination is made as to whether to
revoke parole.
You have advanced four questions which may be combined and summarized
as asking to which groups of persons the new law may be applied in conformity
with the ex post facto prohibitions of the United Statasand Texas Constitutions.
Article 1, Section 9, Clause 3 of the United States Constitution provides:
“No Bill of Attainder or ex post facto Law shall be
passed. I’
Article 1, Section 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. ‘I
The classic definition of ex post facto is found in Calder v. Bull, 3 U. S.
(3Dall. ) 386, 390 (1798), which lists the four types of ex post facto laws as
follows:
“1st. Every law that makes an action done before
the passing of the law; and which was innocent when done,
criminal; and punishes such action. 2d Every law that
aggravates a crime, or makes it greater than it was,
when committed. 3d. Every law that changes the punish-
ment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. 4th. Every law
that 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. ”
The leading Texas case on the ex’post facto nature of laws affecting parole
rights is Ex parte Alegria, 464 S.W. 2d 868 (Tex. Crim. 1971). Alegria was
convicted of rape and sentenced to life imprisonment. Subsequently the Legislature
p* 1115
- .
The Honorable William H. Skelton, page 4 (H-240)
changed the amount of time required to be served to be eligible for parole
from fifteen to twenty years. The Court of Criminal Appeals held that a law
adversely affecting a prisoner’s eligibility for parole consideration was ex
post facto to the extent that it applied to persons already convicted and sen-
tenced when the new law became effective.
Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967)(3-judge court)
aff’d mem. 390 U.S. 713 (1968) involved rights of prisoners after revocation of
parole. There the Massachusetts Legislature enacted a law denying good time
credit to persons whose parole had been revoked during the first six months
after conviction. The court held the statute could not be constitutionally applied
to Greenfield who had been convicted and sentenced before the effective date
of the Act.
To the extent that the amendment to Article 42.12, $ 22, would adversely
affect the rights of persons who have been convicted of offenses committed
prior to the effective dates of the Act, it would be an ex post facto law and
could not be constitutionally applied to these persons. See, Ex parte Medley,
134 U.S. 160 (1890), for the proposition that the dateof the offense is the
relevant date in determining the ex post facto nature of a law. See also In
re Valeneuela, 79 Cal. Rptr. 760 (Ct. App. 1969), which was cited with -
approval by the Texas Court of Criminal Appeals in Ex parte Alegria, supra,
for the proposition that the date of the initial offense rather than the date of
subsequent offenses on which parole revocation is based determine the ex
post facto nature of a law.
It is presumed that the Legislature intended its enactment to be consti-
tutional, 53 Tex. Jur. 2d Statutes, $ 182,~. 271. Thus the amendment to
Article 42.12 $ 22 could only have been intended to apply, and does apply,
to persons convicted for an offense committed on or after the effective date of
the amendment.
SUMMARY
~-
The 1973 amendments to Article 42.12, $ 22, Texas Code
of Criminal Procedure, apply only to those persons convicted for
an offense committed on or after June 14, 1973.
Attorney General of Texas
po 1116
v
The Honorable William H. Skelton, page 5 (H-240)
Opinion Committee
p. 1117