No. MW-0330 (1981).

Case Date:April 29, 1981
Texas Attorney General Opinions 1981. No. MW-0330 (1981). April 29, 1981Opinion No. MW-330White Opinion No. MW-330 Office of the Attorney General State of TexasHonorable Oscar H. MauzyChairmanSenate Committee on JurisprudenceTexas Senate, State CapitolAustin, Texas 78711SYLLABUS: 1981-330Re: Whether trial judge may constitutionally intruct jurors about the possible effects of good conduct time and parole timeDear 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 assume 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 subject of jury discussion of parole matters has long been uncertain and confused. The Texas Court of Criminal Appeals acknowledge this circumstance in Heredia v. State, 528 S.W. 2d 847, 852 (Tex. Crim. App. 1975): The cases . . . establish that there has been an inconsistency of standards. Authority may be cited for a standard requiring a showing that (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 discussed the 'statutory foundation upon which the 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 the jury, after having retired to deliberate upon a case, has received other evidence; . . . 8. Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. 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 Spriggs 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 of the parole law. 528 S.W. 2d at 852. The mere mention of the existence of the law is not prohibited by subdivision (7), but a misstatement of the law always violates that provision. Id. at 852-53. Under the reasoning of Heredia, a statute instructing the jury on the parole law would cure and 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, the Heredia court said that discussion of the parole law is always jury misconduct, because the parole law is not for the jury's consideration. Id. at 853. Again, however, the mere mention of it is not sufficient to defrive a defendant of 'a...

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