holding that retrospective application of a statutory amendment disqualifying Rutledge’s offense for an award of administrative good-conduct time credit (in order to alleviate prison overcrowding) constituted an ex post facto law in violation of both federal and state constitutions
How later courts described this case
- holding that retrospective application of a statutory amendment disqualifying Rutledge’s offense for an award of administrative good-conduct time credit (in order to alleviate prison overcrowding) constituted an ex post facto law in violation of both federal and state constitutions
- stating that the Texas Constitutional prohibition against retroactive laws “is broader than the restrictive construction given ‘ex post facto law.’”
- “retroactive application of the 1987 amendment of the PMA is violative of the ex post facto clause and the applicant’s eligibility for parole is to be determined in accordance with the version of [the PMA] in effect at the time of the offense for which he is convicted”
- “The decision to release or not release an inmate of the Texas Department of Corrections, even though eligible for parole, remains within the sound discretion of the Board of Pardons and Paroles.”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Ex Parte Hallmark, 1994 Tex. Crim. App. LEXIS 76 (1994)
741 S.W.2d 460 (Tex. Crim. App. 1987), overruled on other grounds by Ex Parte Hallmark, 883 S.W.2d 672, 674
The opinion
CLINTON, Judge,
concurring.
Through judicial construction in Calder v. Bull, 3 U.S. 386 , 3 Dall. 386 , 1 L.Ed. 648 (1798), the Supreme Court of the United States held the constitutional prohibition against an ex post facto law embraced only criminal or penal laws. That interpretation was later accepted by Texas courts. See Bender v. Crawford, 33 Tex. 745 (1871).
While I join the opinion of the Court holding that as applied to applicant the 1987 amendment is an ex post facto law and, therefore, violative of both the federal and state Constitutions, I write to point out that our own constitutional prohibition against such laws is broader than the restrictive construction given “ex post facto law.” Under Article I, § 16 there is also a ban on any “retroactive law.” Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971), quoting at length statements to that effect from the Interpretive Commentary following § 16. Id., at 872.
Including “retroactive law” in § 16 “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 that 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 and secured by law.” Mellinger v. City of Houston, 68 Tex. 37 , 3 S.W. 249, at 253 (1887). See also Turbeville v. Gowdy, 272 S.W. 559, 561 [4] (Tex. Civ.App.—Fort Worth 1925).
On that constitutional basis also, applicant is entitled to the relief granted by the Court.
MILLER and DUNCAN, JJ., join in this opinion.