Is it constitutional for a Texas judge to shorten a state jail sentence for program participation?

Plain-English summary

The 173rd Judicial District Attorney asked the Attorney General whether article 42.12, section 15(h) of the Code of Criminal Procedure violated the Texas Constitution. Article 42.12 governs community supervision (the process of suspending a sentence and placing a defendant on probation). For people confined in a state jail felony facility, section 15(h)(1) says the defendant does not earn good conduct time but may be awarded "diligent participation credit," and section 15(h)(6) lets the sentencing judge, based on a report from the Texas Department of Criminal Justice, credit additional time for each day the defendant actually served while diligently participating in an educational, vocational, treatment, or work program. That credit cannot exceed one-fifth of the time the defendant was originally required to serve, so a judge can shorten the required confinement by up to twenty percent. Section 15(h)(6) was added in 2011 by House Bill 2649. The district attorney argued it violated two constitutional provisions: article II, section 1 (separation of powers) and article IV, section 11 (the Governor's clemency power).

Because Texas courts analyze those two provisions together, the opinion did too. Article II, section 1 divides government into legislative, executive, and judicial branches and bars one branch from exercising a power properly attached to another. Article IV, section 11 gives the Governor the power, after conviction, to grant reprieves, commutations, and pardons (on the written recommendation of the Board of Pardons and Paroles), and courts have said that power belongs exclusively to the Governor and cannot be exercised by the legislative or judicial branch. The opinion agreed that diligent participation credit, which shortens the required term and effectively imposes a less severe sentence, is a "commutation" as the Court of Criminal Appeals has defined it.

That label did not decide the case, though. The opinion explained that the Court of Criminal Appeals draws a line between commutation given as "a mere gift or a matter of clemency," which is reserved for the Governor, and commutation "earned by good conduct," which the Legislature may authorize by statute. A statute that let a defendant get a reduced sentence simply by filing a motion was struck down (State ex rel. Smith), while a statute that granted commutation only after a convict earned it by good conduct was upheld (Ex Parte Anderson). Under section 15(h)(6), a defendant must first diligently participate in a qualifying program before a judge may award any credit; the judge cannot shorten the sentence otherwise. So the opinion concluded a court would likely find this reduction is not a "mere gift or matter of clemency," does not interfere with the Governor's expressly granted power, and therefore does not violate article IV, section 11 or article II, section 1.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Prosecutors and the requesting district attorney (as the opinion described it): The opinion answered that a court would likely uphold section 15(h)(6) against the separation-of-powers and clemency challenges, so the credit mechanism would probably survive a constitutional attack.

Judges (as the opinion described it): The opinion treated the judge's award of diligent participation credit as authorized commutation earned by good conduct, not an exercise of the Governor's exclusive clemency power, provided the defendant first diligently participated in a qualifying program.

Defendants in state jail felony facilities (as the opinion described it): The opinion described the credit as available only after the defendant diligently participates in an educational, vocational, treatment, or work program, capped at one-fifth of the time originally required to be served.

Common questions

Can a Texas judge reduce a state jail felony sentence for completing programs?
The opinion read section 15(h)(6) to let a sentencing judge credit additional time for each day a defendant served while diligently participating in an educational, vocational, treatment, or work program, up to one-fifth of the time originally required to be served.

Doesn't shortening a sentence belong to the Governor under the clemency power?
The opinion agreed the credit is a "commutation," but explained the Court of Criminal Appeals allows the Legislature to authorize commutation earned by good conduct. Because the credit must be earned through diligent participation, the opinion concluded it is not the kind of clemency reserved to the Governor.

Why isn't this a separation-of-powers violation?
Courts analyze the clemency power and separation of powers together. Since the credit was earned good-conduct commutation rather than a gift, the opinion concluded the judge's award does not intrude on an exclusively executive power and so does not violate article II, section 1.

What is the difference between earned commutation and a "mere gift"?
The opinion contrasted a struck-down statute that let a defendant get a reduced sentence just by filing a motion with an upheld statute that granted commutation only after the convict earned it by good conduct. The earned version is constitutional; the automatic gift version is not.

Background and statutory framework

The opinion construed article 42.12 of the Code of Criminal Procedure, titled "Community Supervision," and specifically section 15(h)(1) (no good conduct time but possible diligent participation credit for state jail felony confinement) and section 15(h)(6) (judge may credit time for diligent program participation, capped at one-fifth). It noted a defendant may be confined in a state jail felony facility either as a sentence for a state jail felony or as a condition of community supervision, citing Penal Code section 12.35(a) and article 42.12, section 15(d). Section 15(h)(6) was enacted by House Bill 2649 (Act of May 24, 2011, 82d Leg., R.S., ch. 542), and the opinion cited the House Committee on Corrections bill analysis acknowledging the bill would allow sentence reductions.

The constitutional analysis rested on article II, section 1 (separation of powers) and article IV, section 11(b) (the Governor's reprieve, commutation, and pardon power, exercised on the Board of Pardons and Paroles' recommendation), together with the presumption of constitutionality in Government Code section 311.021(1). The opinion relied on State ex rel. Smith v. Blackwell (analyzing the two provisions together; striking a statute that allowed a reduced sentence by motion as an unconstitutional "mere gift"), Snodgrass v. State (the clemency power belongs exclusively to the Governor), and Ex Parte Anderson (the Legislature may authorize commutation earned by good conduct).

Citations

Cases:

• State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 100-01 (Tex. Crim. App. 1973)
• Snodgrass v. State, 150 S.W. 162, 166 (Tex. Crim. App. 1912)
• Ex Parte Anderson, 192 S.W.2d 280, 281-82 (Tex. Crim. App. 1946)

Statutes and constitutional provisions:

• Tex. Code Crim. Proc. Ann. art. 42.12, § 1 (West Supp. 2012); § 15(h)(1); § 15(h)(6) (West Supp. 2012); § 15(d) (West Supp. 2012)
• Tex. Const. art. II, § 1; art. IV, § 11(b)
• Tex. Gov't Code Ann. § 311.021(1) (West 2005)
• Tex. Penal Code Ann. § 12.35(a) (West Supp. 2012)

Other authority:

• Act of May 24, 2011, 82d Leg., R.S., ch. 542, § 1, 2011 Tex. Gen. Laws 1331, 1331-32 (House Bill 2649)
• House Comm. on Corrections, Bill Analysis, Tex. H.B. 2649, 82d Leg., R.S. (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1000
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1000.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 22, 2013

The Honorable R. Scott McKee Opinion No. GA-1000
173rd Judicial District Attorney
109 West Corsicana, Suite 103 Re: Whether article 42.12, sec. 15(h) of the Code
Athens, Texas 75751 of Criminal Procedure, which authorizes a judge to
award confined defendants time credit for
participation in an educational, vocational or
treatment program, violates the Texas Constitution
(RQ-1094-GA)

Dear Mr. McKee:

You ask whether article 42.12, section 15(h) of the Code of Criminal Procedure violates the Texas Constitution.[1] Article 42.12, titled "Community Supervision," governs the process by which courts may suspend the imposition of a criminal defendant's sentence and place the defendant on probation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 1 (West Supp. 2012). As that process relates to state jail felony facilities, section 15(h) provides that "[a] defendant confined in a state jail felony facility does not earn good conduct time for time served in the facility but may be awarded diligent participation credit . . . ." Id. § 15(h)(1). Diligent participation credit is awarded in accordance with subsection 15(h)(6), which provides:

A judge, based on the report [of the Texas Department of Criminal Justice], may credit against any time a defendant is required to serve in a state jail felony facility additional time for each day the defendant actually served in the facility while diligently participating in an educational, vocational, treatment, or work program. A time credit under this subdivision may not exceed one-fifth of the amount of time the defendant is originally required to serve in the facility.

Id. § 15(h)(6). Subsection 15(h)(6) gives the judge of the sentencing court the discretion, if the defendant satisfies certain conditions, to shorten the time a defendant is required to serve in a state jail felony facility by up to twenty percent.[2] Id.; see also House Comm. on Corrections, Bill Analysis, Tex. H.B. 2649, 82d Leg., R.S. (2011) (acknowledging that HB 2649 will allow for the reduction of sentences).

You ask whether subsection 15(h)(6), enacted in 2011 by House Bill 2649, violates article II, section 1 and article IV, section 11 of the Constitution. Request Letter at 1-2; see Act of May 24, 2011, 82d Leg., R.S., ch. 542, § 1, 2011 Tex. Gen. Laws 1331, 1331-32. Courts have analyzed these two constitutional provisions in tandem, so we will address your questions together. See, e.g., State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 100-01 (Tex. Crim. App. 1973).

Article II, section 1 of the Constitution separates the powers of Texas government into the legislative, executive, and judicial branches. TEX. CONST. art. II, § 1. "[N]o person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others," except as expressly permitted by the Constitution. Id. Article IV, Section 11 provides that "[i]n all criminal cases, except treason and impeachment, the Governor shall have power, after conviction or successful completion of a term of deferred adjudication community supervision . . . to grant reprieves and commutations of punishment and pardons." TEX. CONST. art. IV, § 11(b). This power is limited only by the requirement that the Governor must exercise it upon the written recommendation and advice of the Texas Board of Pardons and Paroles. Id. Otherwise, courts have determined that the power belongs exclusively to the Governor and "cannot be exercised, directly or indirectly, either by the legislative or judicial department." Snodgrass v. State, 150 S.W. 162, 166 (Tex. Crim. App. 1912). Any statute that attempts to do so would be unconstitutional. State ex rel. Smith, 500 S.W.2d at 104.

In answering your questions, we are mindful that statutes are presumed to be constitutional. TEX. GOV'T CODE ANN. § 311.021(1) (West 2005). The Court of Criminal Appeals has defined commutation as a change in "the punishment assessed to a less severe one." State ex rel. Smith, 500 S.W.2d at 103. Under subsection 15(h)(6), diligent participation credits shorten a defendant's required term of confinement, effectively imposing a less severe sentence. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 15(h)(6) (West Supp. 2012). Therefore, subsection 15(h)(6) amounts to a commutation, as that term has been defined by the Court of Criminal Appeals. This does not, however, render subsection 15(h)(6) unconstitutional. In construing commutation statutes, the Court of Criminal Appeals has distinguished between commutation given as a "mere gift or a matter of clemency," which power is constitutionally reserved for the Governor, and commutation earned by good conduct, which is not. See, e.g., Ex Parte Anderson, 192 S.W.2d 280, 281-82 (Tex. Crim. App. 1946) (stating that the "power of the Legislature to authorize, by statute, [commutation] for good conduct is generally accepted"). For example, a statute that required a judge to resentence a defendant in a manner that resulted in a shorter sentence was held to be an unconstitutional extension by the Legislature of commutation "as a mere gift or a matter of clemency" because the defendant could receive a reduced sentence simply by filing a motion. State ex rel. Smith, 500 S.W.2d at 102-03. By contrast, the Court upheld the constitutionality of a statute that granted commutation only after a convict, "by his own good conduct, had earned it." Ex Parte Anderson, 192 S.W.2d at 282.

In order to receive diligent participation credit under subsection 15(h)(6), a defendant must first "diligently participate" in one of the specified types of rehabilitative programs. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 15(h)(6) (West Supp. 2012). Only then may the judge award commutation. The statute does not permit or require the judge to shorten a sentence unless the defendant first earned diligent participation credit. Therefore, a court would likely conclude that the reduction in punishment authorized by subsection 15(h)(6) does not constitute commutation given "as a mere gift or as a matter of clemency," and thus is not violative of article IV, section 11. Ex Parte Anderson, 192 S.W.2d at 282. Consequently, a court would likely further hold that a judge's award of diligent participation credit under subsection 15(h)(6) does not interfere with an expressly granted executive power, and thus does not violate article II, section 1.

SUMMARY

A court would likely conclude that article 42.12, subsection 15(h)(6) of the Code of Criminal Procedure does not conflict with article IV, section 11 or article II, section 1 of the Texas Constitution.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable R. Scott McKee, Henderson Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1-2 (Oct. 16, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").

[2] A defendant may be required to serve time in a state jail felony facility either as part of a sentence for conviction of a state jail felony, or as a condition of community supervision. TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2012); TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(d) (West Supp. 2012). The language of subsection 15(h)(6) makes it applicable to either reason for confinement.