No. MW-0330 (1981).
Case Date | April 29, 1981 |
Court | Texas |
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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