Can the Texas Legislature Give Someone a Break? Or Must It Follow Court Judgments?

This post starts with a Beaumont case we discussed in February, Roger Dale Vandyke v. State, 485 S.W.3d 507, (Tex. App.--Beaumont Feb. 10, 2016) pet. granted July 4, 2016. Now the Court of Criminal Appeals has reversed it. Roger Dale Vandyke v. State, __ S.W.3d ___, No. PD-0283-16, (Tex. Crim, App., Dec. 20, 2017) (Judge Newell wrote the opinion joined by Presiding Judge Keller, and Judges Hervey, Alcala, Richardson, Keel, and Walker.).

Vandyke had been civilly committed as a sexually violent predator, and was convicted of failing to progress in sexually violent predator treatment and received a sentence of 25 years for that. But, afterwards, a new law was enacted in Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 13, 2015 Tex. Gen. Laws 2700, 2704. The Legislature amended section 841.085 to limit prosecution to violations of civil commitment requirements under subsections (1), (2), (4), and (5). Id. Thus, under the amended statute's plain language, failure to complete sex offender treatment is no longer a basis for prosecution.

Section 841.085's limitation on prosecution applies to an offense committed before, on, or after the amendment's effective date, “except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected[.]” Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 41, 2015 Tex. Gen. Laws 2700, 2711.

Isn't Vandyke's conviction not final?

if Vandyke's conviction is on appeal, then the State (and the Beaumont Texas Ninth Court of Appeals) is going to say that his conviction is not final.

Can the Legislature "undo" a conviction by changing the law?

The Court of Appeals says "No."

There are two oddments of Texas legal history that explain why the Court of Appeals's opinion is twelve pages long and the Criminal Court of Appeals's opinions (Judge Yeary wrote a dissent that Judge Keasler joined.) total 41 pages.

1. Governor James E. "Pa" Ferguson granted 1,774 pardons and 479 conditional pardons between 1915 and 1917.  Pa was forced to resign in 1917. When his lieutenant governor Mr. W.P. Hobby, succeeded him, Hobby granted 1,319 pardons and 199 conditional pardons between 1917 and 1921, , Governor Miriam A. "Ma" Ferguson granted 384 pardons and 777 conditional pardons between 1925 and 1926. This led to a demand to curb the governor's pardoning power, and in 1936 the constitution was amended so as to create a constitutional Board of Pardons and Paroles, and to limit the clemency powers of the Governor by providing that in all criminal cases except treason and impeachment, the Governor should have power, after conviction, “on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons.” The Governor may grant one reprieve, not to exceed 30 days, in a capital case without action of the board.

Tex. Const. art. IV, § 11, Interpretive Commentary

    2.   The branches of the government of the State of Texas have a history of struggling with             one another." " . . . [N]one of the three governmental branches 'shall exercise any                     power properly attached to either of the others, except in the instances herein                           expressly permitted.' Tex. Const. art. II, § 1"  (Beaumont Vandyke at 5).This separation           of powers clause is violated in one of two ways: (1) “when one branch of government
          assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’             to another branch[;]” and (2) “when one branch unduly interferes with another branch           so that the other branch cannot effectively exercise its constitutionally assigned                         powers.” Armadillo Bail Bonds v. State, Armadillo Bail Bonds v. State, 239 (Tex. Crim.           App. 1990). (Beaumont Vandyke at 5, again).  Citing Ex parte Giles favorably , 502                   S.W.2d 774 (Tex. Crim. App. 1973), Beaumont accepts the State's contention that by                 amending the statute to decriminalize certain conduct, the Legislature “improperly                 assumed the executive branch’s clemency power.”

In the Court of Criminal Appeals, Judge Newell cited cases in which the Legislature changed statutes and thereby decriminalized actions:  Williams v. State, 476 S.W.2d 307, 309 (Tex Crim. App. 1972); Mendoza v. State, 460 S.W.2d 145, 147 (Tex. Crim. App. 1970) Cox v. State, 234 S.W. 531 (Tex. Crim. App. 1921) (noting that a statutory amendment removing the act of possessing equipment for making intoxicating liquor from the forbidden conduct in a penal offense constitutes a repeal of the law under which the defendant was convicted).

Austin's dissenters accepted Beaumont's argument that not following through on punishing Vandyke would be to pardon him-- a thing that no Texas court can do.

Note One- When Presiding Judge Sharon Keller-- my fellow philosophy major-- gives her vote to a defendant-appellant-petitioner: that is noteworthy, and seems to me to be a sign on first face that that petitioner's case is strong on the merits. She has a history of liking the State's side very much.

Note Two- There is an unsung hero here, my fellow Conroe criminal trial and appellate lawyer Scott Pawgan, truly an absolutely first-rate attorney. He boldly and cleverly argued the merits of the 2015 amendment to a hostile Beaumont Court of Appeals which rejected his arguments, but which Pawgan used to persuaded seven out of nine CCA judges, even the super-hard-to-sell Presiding Judge. A lesser advocate might well have failed.

Beaumont Keeps Past and Present Relief from Being Granted to "Failure to Complete Sex Offender Treatment" Convicts by Legislature.

VanDyke v. State, ___ S.W.3d ___, No. 09-14-00137-CR (Tex. App.-- Beaumont, Feb. 10, 2016, no pet. h.)

Know Nothing About Texas's Sexually Violent Predator Law? This Paragraph's for You.

Seventeen years ago, Texas created a sexually-violent-predator law. Texas prisoners about to be released who had had two sex offenses and who had a behavioral abnormality which made them likely to reoffend could be brought to a jury trial, and if those facts were established. those people were made subject to supervision by a state agency, which created and enforced a plethora of rules (Communicating with any person without the permission of the agency was a violation-- viz. during a phone call home to the family, saying "hello" to a family member who was a minor was a violation. If the power went out on the 35-year-old portable tracking transmitters-- the volume of a medium-to-large reference book--  issued to the offender, that was held to be a violation. If one did not follow the rules, they could be convicted of a third degree felony. Practically everyone in the program had two prior felonies, so that these violation sentences could result in prison terms of 40 years or life.
This program (first called Council on Sex Offender Treatment (CSOT), then Office of Violent Sex Offender Management (OVSOM), now Texas Civil Commitment Office (TCCO)) and the court and the judge in charge of these matters have had more problems over the last three years than can fit in a blog post.

Texas Improved the  SVP Law.

Roger Dale VanDyke was convicted of violating civil commitment by failing to complete sex offender treatment and was sentences to 25 years in prison. While the case was on appeal, Texas amended Tex. Health & Safety Code Ann. sec. 841.085 to prohibit prosecution for failing to complete sex offender treatment. The legislature said that this change covered all failures to complete sex offender treatment past, present, or future, except that a final conviction existing on the effective date of the change would remain unaffected.

Well, VanDyke's case was on appeal on the effective date of the change of law, so he asks, is not my conviction overturned? Chief Justice Steve McKeithen, writing for a panel including Justices Hollis Horton and Leanne Johnson, holds that to the extent that the statute change relieves sentenced convicts, the legislature is violating the separation of powers by taking over an executive function-- the granting of clemency to convicts, so that that part of the law is unconstitutional, and no existing sentences, either final or subject to appeal cannot be can be overturned or reduced by the legislature, but only by executive action, viz. the Texas Board of Pardons and Paroles. In a count of the first 13 years of Perry's governorship, one out of 33 requests for clemency, including pardons, was granted, so good luck with that.