Does a Texas law reducing the time before parole eligibility apply to inmates convicted before it passed?

Texas AG Opinion DM-0045: A 1987 Parole-Eligibility Reduction Applies Retroactively

Plain-English summary

A member of the House Committee on Corrections asked whether a 1987 change to Texas parole law applied only to inmates convicted after it took effect. The 70th Legislature had amended section 8(b) of article 42.18 of the Code of Criminal Procedure to reduce the time certain prisoners must serve before becoming eligible for parole, from one-third of the sentence or twenty years to one-fourth of the sentence or fifteen years. The Attorney General concluded the change was not limited to inmates convicted after its effective date; it applies regardless of when the crime was committed or the conviction entered.

The analysis started with the ex post facto clauses. The federal Constitution (article I, sections 9 and 10) bars laws that impose punishment for conduct that was not punishable when committed or that add to the punishment already prescribed, and laws affecting early-release eligibility fall within that bar under Weaver v. Graham. But the prohibition only reaches laws that work to a prisoner's detriment. A law that reduces the time to parole eligibility benefits the prisoner, so it is not an ex post facto violation. The Texas Constitution's article I, section 16 goes further than the federal clause because it bars any retroactive law, not just penal ones, but the opinion read that restriction, citing Mellinger v. City of Houston and Turbeville v. Gowdy, as protecting vested rights and not limiting legislation where no detriment or impairment of a right results.

The opinion found further support in the structure of the 1987 amendments themselves. Provisions that could increase punishment were expressly limited to prisoners convicted of crimes committed after the effective date, a limitation needed to avoid ex post facto problems. No such limit was attached to the section 8(b) reduction in time-to-eligibility, which signaled that the Legislature meant it to apply broadly. The opinion agreed with a South Texas Law Review article by Professor John M. Schmolesky reaching the same conclusion: because the parole-eligibility change benefits inmates, it is not subject to the ex post facto doctrine and applies retroactively.

Currency note

This opinion was issued in 1991 and interprets a 1987 amendment. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Texas parole-eligibility law (then article 42.18 of the Code of Criminal Procedure) has since been recodified into the Government Code and amended many times. Verify current law before relying on any specific eligibility rule, fraction, or deadline mentioned here.

Common questions

Did the 1987 parole change apply only to people convicted after it passed?
No. The opinion concluded it applied to affected inmates regardless of when the crime was committed or the conviction entered.

Why doesn't applying it to older convictions violate ex post facto rules?
Because ex post facto clauses only bar laws that increase punishment to a prisoner's detriment. A law that reduces the time to parole eligibility benefits the inmate, so it falls outside the prohibition.

Doesn't Texas ban all retroactive laws, not just penal ones?
The opinion acknowledged that article I, section 16 of the Texas Constitution reaches beyond penal laws to any retroactive law, but read that ban as protecting vested rights and not as forbidding legislation that causes no detriment or impairment of a right.

How did the opinion know the Legislature meant the change to apply broadly?
The 1987 amendments expressly limited the punishment-increasing provisions to crimes committed after the effective date, but added no such limit to the parole-eligibility reduction. The opinion read that contrast as a sign the Legislature intended the reduction to apply across the board.

Background and statutory framework

The change at issue was made by Acts 1987, 70th Leg., ch. 384, section 5, amending section 8(b) of article 42.18 of the Code of Criminal Procedure to reduce time-to-parole-eligibility. The opinion identified the federal ex post facto bars in U.S. Constitution article I, section 9, clause 3 and section 10, clause 1, and applied Weaver v. Graham (early-release eligibility laws are subject to the bar) and Dobbert v. Florida (a law is impermissible if it substantially alters the consequences of a completed crime and changes the quantum of punishment), noting the bar only reaches laws to a prisoner's detriment. On the Texas side it cited article I, section 16, and read it through Mellinger v. City of Houston (the prohibition protects every right, defined as a well-founded claim recognized or secured by law) and Turbeville v. Gowdy (a statute is retroactive when it takes away or impairs vested rights, or creates a new obligation, duty, or disability as to past transactions). The opinion pointed to the express prospective-only limits in the punishment-increasing 1987 provisions (Acts 1987, 70th Leg., ch. 384, §§ 7-9; ch. 1101, §§ 18, 19) and the absence of any such limit on the section 8(b)(1) reduction. It agreed with John M. Schmolesky, Time Changes: Growing Complexity in Texas Sentencing Law, 30 S. Tex. L. Rev. 283, 299-300 (1989).

Citations

Constitutional and statutory provisions:

• Code of Criminal Procedure article 42.18, section 8(b) (parole eligibility; the 1987 reduction in time-to-eligibility)
• U.S. Constitution article I, section 9, clause 3, and section 10, clause 1 (ex post facto)
• Texas Constitution article I, section 16 (ban on ex post facto and retroactive laws)
• Acts 1987, 70th Leg., ch. 384 (§ 5, the amendment; §§ 7-9, prospective-only provisions); Acts 1987, 70th Leg., ch. 1101, §§ 18, 19

Cases:

• Weaver v. Graham, 450 U.S. 24 (1981)
• Dobbert v. Florida, 432 U.S. 282, 293-94 (1977)
• Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887)
• Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex. Civ. App.-Fort Worth 1925, no writ)

Secondary authority: John M. Schmolesky, Time Changes: Growing Complexity in Texas Sentencing Law, 30 S. Tex. L. Rev. 283 (1989).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0045
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0045.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 24, 1991

Honorable Allen Hightower
Committee on Corrections
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-45

Re: Whether the amendment to article 42.18 of the Code of Criminal Procedure regarding the mandatory time that inmates must serve prior to eligibility for parole is retroactive (RQ-65)

Dear Representative Hightower:

Your question references amendments to the Code of Criminal Procedure adopted by the 70th Legislature. Specifically, section 8(b) of article 42.18 of the Code of Criminal Procedure was amended to reduce the time necessary to be served before parole eligibility for certain prisoners. Acts 1987, 70th Leg., ch. 384, § 5, at 1889. You ask whether this change applies only to inmates convicted after the effective date of the amendment. We conclude it does not.

We first consider whether any constitutional provision bars the retroactive application of article 42.18, section 8(b). The federal Constitution forbids the enactment of a law which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that previously prescribed. U.S. Const. art. I, § 9, cl. 3; id. § 10, cl. 1. Laws affecting eligibility for early release are subject to the ex post facto prohibition of the federal constitution. Weaver v. Graham, 450 U.S. 24 (1981). A law is impermissible if it

substantially alters the consequences attached to a crime already completed, and therefore changes "the quantum of punishment."

Id. at 33, citing Dobbert v. Florida, 432 U.S. 282, 293-94 (1977). Under the federal ex post facto doctrine, a retrospective penal law can only be constitutionally applied to a prisoner if it is not to his detriment. Id.

The Texas Constitution also prohibits ex post facto laws. Article I, section 16, of the Texas Constitution reads as follows:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

This provision goes further than the federal Constitution in that its prohibition is not limited to retroactive penal laws, but extends to any retroactive law. In an early case interpreting the meaning of the prohibition against retroactive laws in article I, section 16, the Texas Supreme Court stated:

The making of it evidences an intention to place a further restriction on the power of the legislature; and it must be held to protect every right, although not strictly a right to property, which may accrue under existing laws prior to the passage of any, which, if permitted a retroactive effect, would take away the right. A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured by law.

Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887). In Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex. Civ. App.-Fort Worth 1925, no writ), the court stated:

A statute is retroactive which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or adopts a new disability in respect to transactions or considerations already passed.

We do not think the restriction on the power of the legislature found in article I, section 16, of the Texas Constitution is intended to limit the application of legislation where no detriment or impairment of a right ensues. Thus, we conclude that neither the Constitution of the United States nor that of Texas prohibits the application of section 8(b) to inmates convicted of offenses committed before its effective date.

This conclusion finds support in the amendments to the Code of Criminal Procedure enacted by the 70th Legislature. Certain provisions of the 1987 amendments to the Code of Criminal Procedure, which may operate to increase punishment to prisoners, are expressly limited to prisoners convicted of crimes committed after the effective date of the amendment. See Acts 1987, 70th Leg., ch. 384, §§ 7-9, at 1889-91; Acts 1987, 70th Leg., ch. 1101, §§ 18, 19, at 3767-68. These limitations are necessary to avoid impermissible ex post facto effects. No such limitation was made to the effect of the amendments to section 8(b)(1) of article 42.18 which reduce the time a prisoner must serve before becoming eligible for parole.

In an article published in the South Texas Law Review, Professor John M. Schmolesky of St. Mary's University School of Law discussed the application of the amendments to section 8(b):

It appears that only one of the major amendments by the Seventieth Legislature discussed in this article would apply retroactively: the change in parole eligibility from one-third of the sentence imposed or twenty years to one-fourth of the sentence imposed or fifteen years. Because this enactment is beneficial to inmates, it is not subject to the ex post facto doctrine. Furthermore, the legislature apparently intended retroactive application because the statute contains no provision that the earlier parole eligibility date should only apply to inmates after the effective date of the Act, and several other amendments are expressly designated for prospective application. Thus, it appears that the immediate impact of the amendments of the Seventieth Legislature discussed in this article will be the availability of an earlier release from custody for many members of the present prison population despite the apparently more punitive thrust of much of the legislation.

Schmolesky, Time Changes: Growing Complexity in Texas Sentencing Law, 30 S. Tex. L. Rev. 283, 299-300 (1989) (Ex Post Facto Doctrine).

We agree with Professor Schmolesky's conclusion with respect to the change in the time required to be served before parole eligibility. Because its effect is not detrimental to the affected prisoners, it runs afoul of neither the ex post facto doctrine nor the restriction against retroactive laws found in article I, section 16, of the Texas Constitution. This change applies to prisoners without respect to the time of the commission of the crime or the date of conviction.

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 not limited with respect to the time the crime was committed or the date of conviction.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General