Case Information
*1 The Attorney General of Texas April 29, 1981 MARK WHITE
Attorney General Opinion No. Pm-330
Chairman
Senate Committee on Jurisprudence Re: Whether trial judge may con- Texas Senate, State Capitol stitutionallv instruct jurors about Austin, Texas 78711 possi&e effects good conduct time and parole time Dear Senator Mauzy:
You have requested our opinion as to whether a trial judge may constitutionally instruct jurors about the possible effects upon a prisoner’s sentence of parole and good conduct time. We sssume that your question refers to proposed legislation which may permit or require such instruction, although you have not submitted to us any specific proposal. Texas law on the subiect of iurv discussion of oarole matters has lone ~“~ %he Texas Co&i of Criminal ~Appeag
been uncertain and confused. acknowledged this circumstance in Heredia y.~ State, 528 S.W. 2d 847, 8 _- (Tex. Crim. App. 1975): . . establish there has been an
The cases. inconsistency of standards. Authority may be cited a standard a showing (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason change their vote to a harsher punishment, before reversible error is shown; but likewise authority may be cited which would require only a showing that a statement on the parole law was made and it was either untrue or it was harmful.
The court then discussd the “statutory foundation upon which issue ultimately rests,” article 40.03 of the Code of Criminal Procedure, which provides that new trials in felony cases shall be granted, inter alia: 7. Where jury, after having retired deliberate upon a case, has received other evidence; . . .
8. Where, the misconduct of the jury, is of the opinion the defendant has not received a fair and impartial triaL *2 - Page Two N-330) The court indicated that some previous decisions had said that jury discussion of the parole law violates subdivision (7) of article 40.03, in that the jury has “received other evidence” relating to the parole law. See Springs v. State, 268 S.W. 2d 191 (Tex. Crim. App. 1954). Other decisions had said that such jury discussion contravenes subdivision (8), by denying a defendant “a fair and impartial trial” See Mays v. State, 320 S.W. 2d 13 (Tex. Crim. App. 1959).
The Heredia court believed that either statutory provision might be applicable to jury discussion the parole law. 528 SW. 2d at 852. The mere mention of the existence of law is not prohibited by subdivision (7), but a misstatement of the law always violates that provision. & at 852-53. Under reasoning of Heredia, a instructing the jury on the parole law would cure any problem arising under subdivision (7), however. Since the jury would be apprised of the parole law as part of its charge, discussion of it could not constitute receipt of “other evidence.”
As to subdivision (8) of article 40.03, Heredia court said discussion of the parole law is always jury misconduct, because parole law is not for the jury’s consideration. & at 853. Again, however, the mere mention of it is not sufficient deprive a defendant of “a fair and impartial trial” Likewise, a discussion of the law, followed an instruction that it should not be further discussed, is not violative of subdivision (a), provided the law is not discussed after the instruction. J&. The court emphasized that the “degree of misconduct” sufficient “to deny the defendant a fair and impartial trial must be determined upon the facts of individual case.” Id. As to particular facts of Heredia, the court concluded that, under either subd=sion (7) or (81, no reversible error occurred. Id. -
Although the court in Heredia alluded in a footnote to a possible constitutional basis for the standard that it announced, 528 S.W. 2d at 853 n.4, the decision really rests upon the statutory language of subdivisions (7) and (8) of article 40.03. Since, however, standard of subdivision (8) is that of “fair and impartial trial,” that statute. incorporates a constitutional basis for the prohibition against jury discussion of the parole law. To the extent that such discussion denies a defendant a “fair and impartial trial,” it contravenes article I, section 19 of the Texas Constitution, due process clause, see Vogt v. Bexar County, 23 S.W. 1044, 1046 (Tex. Civ. App. 1893, writ rePd) and commentary to article I, section 19, at 447, and article I, section 10, which guarantees every criminal defendant “a speedy public trial by an impartial jury.” If jury discussion law is sufficient to deprive a defendant of a fair and impartial trial, a statute on that issue, which would in effect authorize such discussion, might, in light of Heredia, insufficient to overcome prohibition. Subsequent decisions the court of criminal appeals, however, indicate such a statute, if properly limited, might satisfy standard.
Heredia was followed three years later by Sanders v. State;580 S.W. 2d 349 (Tex Crim. App. 1978), in which that a jury had discussed law extensively and the discussion had affected jury deliberations on the issue of whether to grant or deny probation. 580 SW. 2d at 351. By a 2-l vote, affirmed its decision in Heredia, concluding the jury’s discussion was harmful and *3 Honorable Oscar H. Mauzy - Page Three @M-3301 it denied the defendant a “fair and impartial trial” under subdivision (8). The
court went further, however, and articulated “the basis the established rule that discussion of the parole law is always jury misconduct.” 5 at 352. The court declared:
It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid possible granting of parole
by increasing punishment in anticipation thereof. Article II,
Sec. 1 of the Texas Constitution provides for separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. It is well established under this Article that:
‘[Al power which has been granted to one department of government may be exercised onlv bs that branch . . . And any attempt by one department exclusion of thebthers. of government to interfere with the powers of another is null and void.’ Ex parte Giles, Tex. Cr. App., 502 S.W. 2d 774; Smith v. Blackwell, Tex. Cr. App., 500 S.W. 2d 97. (Emphasis added)
Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch, Art. IV, Sec. ll, Texas Const; and any action by the judicial branch to frustrate or delay exercise of that power by the executive branch as much of an unconstitutional interference as is an attempted usurpation of that power. . . .
This is basis for the established rule that discussion law is always jury misconduct. The issue remains, whether, in terms of Art 40.03(8), supra, misconduct here was such that ‘the is of [the] opinion that the defendant not received a fair and impartial trial’ 5 at 351-52.
Although the court again relied upon subdivision (8) of article 40.03, and found discussion deprived the defendant of a fair and impartial trial, it did not refer either to article I, section 19 or to article I, section 10 of Texas Constitution, nor did it imply right to a fair and impartial is a constitutional right guaranteed to a defendant. Instead the constitutional basis of its decision in article II, section 1 and article IV, section 11 provisions which relate to distribution of power among three branches of government, and would seem to be in no way related to a defendant’s right, constitutional or otherwise, to a fair and a statute which impartial triaL Nevertheless, result of Sanders is clear: encouraged extensive discussion by a jury would be deemed *4 - Page Four (MK- 330) unconstitutional the court of criminal appeals as an interference by the judicial branch with the clemency powers committed to the executive branch.
Since it is only extensive discussion of the parole law and reliance by one or more jurors on that discussion in determining punishment considers to contravene the constitution, it seems likely that a statute permitting or requiring to apprise jury of the parole law would be held constitutional under Sanders rationale so long as the judge admonished jury not to discuss it.
More than a year after 2-l decision in Sanders, the full court, by a 5-4 margin, overruled the state’s motion for rehearing without written opinion. Judge Dally, speaking for four members of court, dissented from the decision to overrule. His opinion is instructive.
Judge Dally began by summarizing majority ruling in Sanders: “if there extensive discussion of parole law and a juror testifies he changed his vote the judgment will be reversed.” 580 S.W. 2d at 356. Judge Dally noted that “the inconsistency mentioned in Heredia. . . has persisted since Heredia was decided.” g at 357. He suggested a return to the pre-Heredia test, which holds that, in order demonstrate reversible error, “it must be shown that there was:
(1) a misstatement of the law
(2) asserted as a fact by one professing to know law
(3) which is relied upon by other jurors
(4) who reason changed their vote to a harsher (5) punishment.”
g
If the minority view in Sanders were to be adopted the court, virtually any either permitting or requiring to advise jury about parole law would acceptable, since minority test requires initially that, in order to show reversible error, there must occur a misstatement of the law. Any statute that required to the jury about law would presumably require an accurate recitation of that law. So long as the statute did not itself require or permit a misstatement law, it would satisfy the minority test of Sanders. But - see Farris v. State, 535 S.W. 2d 608 (Tenn. 1976).
Since Sanders, the court of criminal appeals has rendered a number of further decisions regarding jury discussion of the parole law, decisions which may arguably be termed inconsistent. See, e.g., Nacol v. State, 590 SW. 2d 481, 486 (Tex. Crim. App. 1979); O’Br an v. State, 591 S.W. 2d 464, 478 (Tex. Crim. App. 1979); Jones v. State, 596 S.W. 2d 134, 138 Tex. Cnm. App. 1980). But neither the Heredia-Sanders test nor the -. *5 (MVdli-330) Honorable Oscar Ii. Mauzy - Page Five
Sanders constitutional rationale been repudiated, and we are obliged to conclude the test remains operative. As a result, we believe that some version of a statute advising a jury about parole and good conduct time would probably be upheld as court of criminal appeals, so long as the limiting safeguard, discussed s, was present.
We must note, however, two significant reservations regarding this conclusion: the separation of powers rationale relied on in Sanders is not logically compatible with this result - it ought to preclude the mere consideration by a juror; and, if the dissenting view in Sanders were to prevail, no limiting safeguards would be required for a parole statute to pass constitutional muster.
Our consideration of your inquiry is further clouded the Supreme Court of Tennessee’s 1976 decision in Farris v. State, 535 S.W. 2d 608 (Term. 1976), which you have asked us to discuss In that case, the court held unconstitutional a statute which required a trial to “charge to parole eligibility, certain the jury with respect powers and duties of Board of Pardons and Paroles, good behavior allowances, and the allowance of honor time.” 535 S.W. 2d at 609. Although invalid in part because of a caption defect, it also held it to be “impermissibly vague and impossible to apply. ” Id at 613. The court then noted that:
1jl urors of reasonable or common understanding and intelligence are not capable of understanding the various ramifications the parole system.
g As the concurring opinion points out, court can’t mean the statute trial judges to charge juries about the parole law is vague:
its mandate to trial judges is plain enough. In my view, vagueness and confusion to which Mr. Justice H,enry refers relates instructions regarding parole eligibility, etc., which Chapter 163 would require trial judges to give to juries trying felony cases.
5 at 615.
To complicate matters, court also raised the fair trial issue, and, like the Texas Court of Criminal Appeals, it failed to refer to any constitutional basis therefor:
Jurors should not be permitted to speculate on the length of
sentences, discretionary parole, accumulation of good and honor time and a whole conglomeration of contingent events which, if they come to pass at all, will come to pass in the future. Very heavily involved is right of a defendant to a fair triaL
This ‘by guess and by golly,’ and we will not countenance it by upholding a statute which offends every sense of fairness and every precept of due process. *6 - Page Six (m-330)
It tends to make a jury speculate on the length of time a convicted defendant will be required to serve and further tends to breed irresponsibility on the part of jurors premised upon the proposition corrective action can be taken by others at a later date. A greater defect in stems the fact jurors tend to attempt to compensate for future clemency imposing harsher sentences. The matter future disposition of a convicted
defendant is wholly and utterly foreign to his guilt and is not a
proper consideration a jury in determining the length of his sentence.
Id. at 614. None of this discussion any relevance to the court’s ostensible reason G holding statute unconstitutional - vagueness; but it comes close to the largely unarticulated “fair trial” rationale of Heredia and Sanders. In our opinion, Texas Court of Criminal Appeals would not adopt reasoning of Farris which relates vagueness. But the court could certainly rely on language relating to fair trial to void any statute which failed to contain the limiting safeguards previously discussed.
The present state of the law relating to the inquiry you have submitted sufficiently uncertain as to preclude any confident prediction about how the court of criminal appeals might rule on a particular statute. We believe it is instructive to note that no constitutional problem appears to exist under the Federal Constitution; in any event, no court has even suggested that advising a jury about parole might contravene any portion of United States Constitution. The court of criminal appeals has a choice of state constitutional doctrines, however, with some support in decisional law, including separation of powers, vagueness and due process, which it may rely upon to invalidate a statute which requires or permits a jury instruction about parole and good conduct time. We believe that, at present, court would likely to uphold such a statute, so long as it required judge to admonish the jury not to discuss the subject.
SUMMARY The courts would be likely to uphold a statute which authorizes a ju@e to instruct jurors about the possible effects upon a prisoner’s sentence of parole and good conduct time, so long as it required to admonish the jury not to discuss the subject.
MARK WHITE Attorney General of Texas *7 - Page Seven (bw-330) JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Bruce Youngblood