Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAlTOX Aug;cst 31, 1984
Attorney General
Supreme Couri Building Eoaorable El Franccb Lee Opinion No. JM-202
P. 0. Box 12545
Austin. TX. 78711. 2545
Chairman
51214752501 Committee on Electicns Re: Construction of House Bill
Telex 91olS74-1357 Texas House of Repro sentatives No. 718 which amends article
Telecopier 512/475-0258 P. 0. Box 2910 5.01 of the Election Code
Austin, Texas 78;‘t 9
714 Jackson, Suite 700
Dallas. TX. 75202-4506 Dear Representative! Lee:
2141742.9944
You request a% interpretation of House Bill No. 718 of the
Sixty-eighth Legislnture which amended article 5.01 of the Election
4824 Alb-artr Ave.. Suite 180
El Pap, TX. 799052793
Code to read in pertinent part:
915/533-34S4 .
The foll.cwing classes of persons shall not be
allowed i:o vote in this state:
‘001 Texas. Suite 700
wstc.“, TX. 77002.3111
. . .
I 13/2255995
3. Pwsons while incarcerated, on parole,
905 Broadway. Suits 312 mandatory supervision. or probation as a result of
Lubbock. TX. 79401.3479 a felony conviction.
808/747-5239
4. P,v:sons who have been convicted of a
4309 N. Tenth. Suite S felony, for a period ending on the fifth
McAllen. TX. 79501-1685 annivers,iry of the date on which the person:
5121992.4547
(A) received a certificate of discharge by the
200 Main Plaza. Suite 4W Board ofr?ardons and Paroles; or
San Antonio. TX. 78205.2797
51212254191 (B) completed a period of probation ordered by
a court. (Emphasis added).
An Equal Opportunilyl
Affirmative Action Employer Article VI. sectf,cn 1 of the Texas Constitution disqualifies all
felons from voting, subject to exceptions made by the legislature.
You seek an :lnterpretation of the underlined language. You ask
whether a certifiwte of discharge issued by the Texas Department of
Corrections for persons sentenced prior to August 29, 1977 is the
legal equivalent of discharge from the Board of Pardons and Paroles.
Article 616621, V.T.C.S., provides in part:
p. 888
n
Ronorable El France Lee - Page 2 (JM-202)
When a convict is entitled to a discharge from the
State penitentially . . . the Director of the
Department of Ccmrections or his Fxecut ive
Assistant shall prepare and deliver to him a
written discharge. . . .
Article 42.12 of the Code of Criminal Procedure provides in
sections 23 and 24:
Sec. 23.
. . . .
When any parol,sd prisoner has fulfilled the
obligations of his parole and has served out his
term as conditiomd in the preceding paragraph,
the Board shall lutke a final order of discharge
and issue to the parolee a certificate of such
discharge.
Sec. 24. When any prisoner who has been
paroled or released to mandatory supervision has
complied with the rules and conditions governing
his release until the end of the term to which he
was sentenced, mci without a revocation of his
parole or mandatcry supervision, the Board shall
make a final order of discharge and issue the
prisoner a certif:lcate of discharge.
Prior to August 29, 1977, article 42.12 did not provide for
mandatory supervision. This procedure was added by a 1977 amendment.
Acts 1977. 65th Leg.. ch. 3ai’r, 12, at 925. A prisoner under maodatory
supervision, like a parolel!, is released from imprisonment, but not
from the legal custody of the state, for rehabilitation outside the
prison walls. Code Grim. IYoc. art. 42.12, 52~. d. The eligibility
requirements are different for each form of supervision. Moreover,
parole is not automaticall:r granted to eligible prisoners; it is
discretionary with the Bomd of Pardons and Paroles subject to
statutory guidelines. -Id. I15 (e-i).
In contrast, a prisoner not on parole “shall be released to
mandatory supervision” by !:he board when his actual time served plus
good conduct time equal the maximum sentence. Id. 115(c). See
V.T.C.S. art. 6181-1 (accrual of good conduct time).The good conduct
time law existing before August 29, 1977, actually commuted the
sentence so that the prisoner was discharged from the Department of
Corrections when good conduct time plus time served equaled the term
of the sentence. See Acts 1927, 40th Leg., ch. 212, 023 (former
V.T.C.S. art. 6166vrActs 1943. 48th Leg., ch. 361, at 635 (former
V.T.C.S. art. 61841). Tke 1977 amendment to article 42.12 also
p. 889
L
Honorable El France Lee - Page 3 (m-202)
repealed the former good coduct time statutes. Acts 1977. 65th Leg.,
ch. 347. 16. at 933.
The 1977 amendment to r,rticle 42.12 provides in section 7 that
[t]his Act applieE only to inmates sentenced to
the Texas Departmc!rX of Corrections for an Offense
committed on or after the effective date of this
Act.
If the mandatory supervis:lon law were imposed. on a prisoner who
coamritted his crime before the August 29, 1977 effective date, he
would remain under state su~lczvision at a time when prior law required
his discharge from his sent,tnce. Section 7 prevents the unconstitu-
tional imposition on an off’r,nder of a punishment which did not exist
when he committed the trim?. -See Tex. Const. art. I, 516 (ex post
facto law).
Thus, someone sentencei for an offense committed prior to August
29, 1977 and not paroled ha:; received or will receive a discharge only
from the Department of Corrkctions. Persons sentenced for offenses
committed after August 29, L977 and subsequently placed on mandatory
supervision were or will be discharged by the Board of Pardons and
Paroles. Persons paroled at any time receive their certificate of
discharge from the Board of ‘?ardons and Paroles. The board informs us
that the Department of Corl,c,ctions issues a discharge certificate for
every person who completes his sentence, and the board performs its
duty to issue a discharge certificate by stamping the department’s
certificate.
Your question about the, “legal equivalent” of a certificate from
the Board of Pardons and Psroles raises the issue of the class of
persons enfranchised by ;Irticle 5.01. Does article 5.01 now
enfranchise all convicted felons five years after completing their
sentences or does it exclude! any felon who could not be discharged by
the Board of Pardons and I,zroles because he was not paroled and not
subject to mandatory supervision? You in effect ask whether section 4
of article 5.01 should be read as follows:
4. Persons rrt,o have been convicted of a
felony, for a period ending on the fifth
anniversary of the date on which the person:
(A) received a certificate of discharge by the
Board of Pardcas and Paroles [or the equivalent
of such a certificate of discharge]. . . .
Support for the view :hat felons discharged by the Department of
Corrections are reenfranchl:;ed on the fifth anniversary of that date
is to be found in the legl,elative history of House Bill No. 718. As,
first introduced it did not include a section 4, but only section 3,
p. 890
Bonorable El France Lee - Page 3 (a-202)
repealed the former good conduct time statutes. Acts 1977, 65th Leg.,
ch. 347, 56. at 933.
The 1977 amendment to article 42.12 provides in section 7 that
[t]his Act applies only to inmates sentenced to
the Texas Department of Corrections for an offense
committed on or after the effective date of this
Act.
If the mandatory supervisi,cn law were imposed on a prisoner who
committed his crime before the August 29, 1977 effective date, he
would remain under state supervision at a time when prior law required
his discharge from his sentence. Section 7 prevents the unconstitu-
tional imposition on an offender of a punishment which did not exist
when he committed the crime!. -See Tex. Const. art. I, 516 (ex post
facto law).
Thus, someone sentenced for an offense committed prior to August
29. 1977 and not paroled hat received or will receive a discharge only
from the Department of Cor::octions. Persons sentenced for offenses
committed after August 29, 1977 and subsequently placed on mandatory
supervision were or will blr discharged by the Board of Pardons and
Paroles. Persons paroled al: any time receive their certificate of
discharge from the Board of Iardons and Paroles. The board informs us
that the Department of Corre:tions issues a discharge certificate for
every person who completes his sentence, and the board performs its
duty to issue a discharge certificate by stamping the department’s
certificate.
Your question about th,r “legal equivalent” of a certificate from
the Board of Pardons and I’rroles raises the issue of the class of
persons enfranchised by article 5.01. Does article 5.01 now
enfranchise all convicted Lslons five years after completing their
sentences or does it excludr any felon who could not, be discharged by
the Board of Pardons and Pit::oles because he was not paroled and not
subject to mandatory supervir:ion? You in effect ask whether section 4
of article 5.01 should be rc!c,d as follows:
4. Persons who have been convicted of a
felony, for 8 period ending on the fifth
anniversary of thti! date on which the person:
(A) received 21 certificate of discharge by the
Board of Pardonr; end Paroles [or the equivalent
of such a cert:.f’icate of discharge]. . . .
Support for the view thnt felons discharged by the Department of
Corrections are reenfranchissd on the fifth anniversary of that date
is to be found in the legi``3.ative history of House Bill No. 718. As
first introduced it did not include a section 4. but only section 3,
p. 890
.
Rcmorable El France Lee - Page 5 (JM-202)
rational basis. The only d:Lstinction between the groups is “wholly
arbitrary” -- a difference Ln the official ministerial act granting
discharge. There is no constitutionally justifiable basis for
granting or withdrawing the franchise on this purely insubstantfal
difference. Thus, the s!:r.tute must be construed to omit this
difference if it is to be sil\,ed from invalidity.
You also ask whether a certificate of discharge from other
institutions such as a federal or sister state prison or parole board
is the legal equivalent of e certificate of discharge from the Board
of Pardons and Paroles. C:fnerally , courts have said that statutes
regulating the right to vote should be liberally interpreted in favor
of- that right. Thomas v. i?m. 212 S.W.2d 625 (Tex. 1948); Walker
v. Thetford, 418 S.W.Zd 276 (Tex. Civ. App. - Austin 1967, writ ref’d
n.r.e.1; Wooley v. Sterrett,, 387 S.W.2d 734 (Tex. Civ. App. - Dallas
1965, no writ); Mitchell v. -- Jones, 361 S.W.2d 224 (Tex. Civ. App. -
Texarkana 1962. no writ). Moreover, relevant cases have concluded
that the Texas law barring convicted felons from voting applies to
persons convicted in fedeial as well as state court. -Shipherd v.
See also II;lyes v. Williams, 341 F. Supp. 182 (S.D.
Genera:rOpinion V-278 (1947) (prohibition against
convicted felons voting applies to persons convicted in federal
court). See also Hughes v. --State, 284 S.W. 952 (Tex. Grim. App. 1926)
(person convicted of felony in federal court disqualified from jury
service). Ilence, we conclude that felons discharged by either a
federal or a sister state’s correctional institution or parole board,
as well as by the Texas DeTs&rtmentof Corrections, are reenfranchised
five years after that event. To conclude otherwise could subject the
Act to possible invalidation under the Equal Protection Clause of the
United States Constitution.
SUMMARY
House Bill !I.>. 718 of the Sixty-eighth
Legislature, codiEied as article 5.01 of the
Election Code, restores the vote to persons
convicted of a fe:l,ony on the fifth anniversary of
their discharge by the Texas Department of
Corrections or by 3 federal or sister state prison
or parole board, just like those discharged by the
Texas Board of Pardons and Paroles.
JIM MATTOX
Attorney General of Texas i
p. 892
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Roaorablc El Franc0 Lee - Page 6 (m-202)
TON GREEN
First Assistant Attorney Gererel
DAVID R. RICHARDS
Executive Assistant Attorney, General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINIONCOMWTT.EE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
p. 893