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Fifth Circuit Rules Texas Parole Law Not Ex Post Facto
The U.S. Fifth Circuit Court of Appeals ruled that a Texas parole law created in 1993, but applied retroactively to capital offenders in 1995, was not ex post facto.
Billy Ray Wallace was sentenced in December 1981 for the crime of capital murder. At the time of his offense, Wallace was under a parole law that required him to obtain two votes from a three-member panel in order to make parole.
In 1993, as part of Texas’ get-tough-on-crime initiative, the legislature created an 18-member parole panel and re-quired newly-convicted capital offenders to obtain a minimum of two-thirds approval (12 votes) to make parole. In its origi-nal wording, Senate Bill 1067 of the 73rd Texas legislature was prospective. However, in 1994, on its own initiative, the parole board began to apply the law retroactively.
When Wallace came up for parole he received two favorable votes from board members in his region. However, as the voting continued he did not receive the twelve votes required under the 2/3 approval rule as it was being applied by the board.
Wallace filed a writ of habeas corpus in state court, which was denied without a written order. He then filed a habeas petition in federal district court. That writ and the accompanying certificate of appealability (COA) also were denied.
Finally, Wallace appealed to the Fifth Circuit where the appellate court granted his COA and reviewed the merits of his claim.
The Court of Appeals first reviewed the language of the law in effect at the time Wallace was sentenced, specifically the phrase that read, “the parole board members and commissioners may act in panels comprised of three persons in each panel.” The Court found that the wording in the original law was discretionary and did not hold the board to any fixed number of voting members.
Next, the appellate court reviewed the 1995 version of the Texas statute that was being applied to Wallace, and de-termined that the wording of the law was merely a guideline on how parole suitability was to be determined. The Fifth Cir-cuit used precedents established in Shears v. United States, 822 F.2d 556 (5th Cir. 1987) and Portley v. Grossman, 444 U.S. 1311 (1980) to establish the wide latitude of discretion exercised by the board in its application of parole guidelines.
The Court then relied on Simpson v. Ortiz, 995 F.2d 606 (5th Cir. 1993) to make a distinction between the concepts of parole eligibility and parole suitability. According to the appellate court, Simpson held “[t]he Parole Commission deter-mines a prisoner’s suitability for parole, not his eligibility. The code that Wallace contests addresses parole board deci-sion-making; it relates directly to the Commission’s determination of suitability for parole and does not have ex post facto implications.”
The Fifth Circuit acknowledged that “parole board discretion does not displace the Ex Post Facto Clause’s protec-tions.” Garner v. Jones, 529 U.S. 244 (2000). However, the Court found that even though Wallace had provided proof that he obtained two favorable parole votes, which was the original suitability standard, his claim presented only “speculative evidence that the new rules produced a risk of increased confinement.” The district court’s order denying Wallace’s ha-beas petition was therefore affirmed. See: Wallace v. Quarterman, 516 F.3d 351 (5th Cir. 2008).
Billy Ray Wallace was sentenced in December 1981 for the crime of capital murder. At the time of his offense, Wallace was under a parole law that required him to obtain two votes from a three-member panel in order to make parole.
In 1993, as part of Texas’ get-tough-on-crime initiative, the legislature created an 18-member parole panel and re-quired newly-convicted capital offenders to obtain a minimum of two-thirds approval (12 votes) to make parole. In its origi-nal wording, Senate Bill 1067 of the 73rd Texas legislature was prospective. However, in 1994, on its own initiative, the parole board began to apply the law retroactively.
When Wallace came up for parole he received two favorable votes from board members in his region. However, as the voting continued he did not receive the twelve votes required under the 2/3 approval rule as it was being applied by the board.
Wallace filed a writ of habeas corpus in state court, which was denied without a written order. He then filed a habeas petition in federal district court. That writ and the accompanying certificate of appealability (COA) also were denied.
Finally, Wallace appealed to the Fifth Circuit where the appellate court granted his COA and reviewed the merits of his claim.
The Court of Appeals first reviewed the language of the law in effect at the time Wallace was sentenced, specifically the phrase that read, “the parole board members and commissioners may act in panels comprised of three persons in each panel.” The Court found that the wording in the original law was discretionary and did not hold the board to any fixed number of voting members.
Next, the appellate court reviewed the 1995 version of the Texas statute that was being applied to Wallace, and de-termined that the wording of the law was merely a guideline on how parole suitability was to be determined. The Fifth Cir-cuit used precedents established in Shears v. United States, 822 F.2d 556 (5th Cir. 1987) and Portley v. Grossman, 444 U.S. 1311 (1980) to establish the wide latitude of discretion exercised by the board in its application of parole guidelines.
The Court then relied on Simpson v. Ortiz, 995 F.2d 606 (5th Cir. 1993) to make a distinction between the concepts of parole eligibility and parole suitability. According to the appellate court, Simpson held “[t]he Parole Commission deter-mines a prisoner’s suitability for parole, not his eligibility. The code that Wallace contests addresses parole board deci-sion-making; it relates directly to the Commission’s determination of suitability for parole and does not have ex post facto implications.”
The Fifth Circuit acknowledged that “parole board discretion does not displace the Ex Post Facto Clause’s protec-tions.” Garner v. Jones, 529 U.S. 244 (2000). However, the Court found that even though Wallace had provided proof that he obtained two favorable parole votes, which was the original suitability standard, his claim presented only “speculative evidence that the new rules produced a risk of increased confinement.” The district court’s order denying Wallace’s ha-beas petition was therefore affirmed. See: Wallace v. Quarterman, 516 F.3d 351 (5th Cir. 2008).
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Related legal case
Wallace v. Quarterman
| Year | 2008 |
|---|---|
| Cite | 516 F.3d 351 (5th Cir. 2008) |
| Level | Court of Appeals |
| Injunction Status | N/A |