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Texas: Retroactive Application of Law That Decriminalized Specific Conduct Not Violation of Separation of Powers

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that the state legislature does not violate the Separation of Powers Clause of the Texas Constitution when it exercises its power to repeal criminal laws, and the legislature was within its authority to apply the change to individuals whose criminal cases were pending on appeal at the time the change became effective.

In 2015, the legislature passed Senate Bill 746 that amended several provisions of the Civil Commitment of Sexually Violent Predators Act contained within the Health and Safety Code. Specifically, the amendment removed the provision that made it a criminal offense for a sexually violent predator who had been civilly committed to fail to comply with the terms of his sex offender treatment. The bill had a savings clause that applied the change to anyone who had been convicted of the offense of violating the terms of his civil commitment and whose direct appeal was pending at the time the legislation became effective. The provisions of the bill became immediately effective upon Governor Abbott signing it into law.

Roger Vandyke was required to make progress in a course of treatment mandated for those civilly committed as violent sexual offenders, or risk being criminally charged with a new offense. When Vandyke was discharged from the treatment program due to his lack of progress, he was charged with violating Health and Safety Code Section 841.082(a)(4). He pleaded guilty and was handed a 25-year prison sentence.

While Vandyke’s direct appeal of that matter was pending, Governor Abbott signed Bill 746 into law. Relying on the savings clause in the new law, Vandyke asked the Court of Appeals to reverse his conviction because the amendment to Section 841.085 decriminalized his conduct. The State opposed, arguing that the savings clause violated the Separation of Powers Clause of the Texas Constitution because it usurped the governor’s power to grant clemency. The Court of Appeals affirmed Vandyke’s conviction, agreeing with the State’s position. The CCA agreed to hear Vandyke’s appeal on the sole issue of whether the Court of Appeals erred in holding the savings clause usurped the governor’s clemency power.

Article II § 1 of theTexas Constitution provides that the power of state government shall be divided into three distinct branches: legislative, executive, and judicial. This Separation of Powers Clause can be violated when a branch assumes the power of another branch, or interferes with another branch’s powers. Under the state Constitution, the governor has sole power to grant clemency after a conviction.

SB 746 was enacted to make failure to comply with sex offender treatment mandates into a civil, rather than criminal, process under a tiered system based on an offender’s behavior and performance in the program. The bill was enacted the same day the governor signed it into law, and expressly applied retroactively to cases on direct appeal.

Criminal cases are not final while on direct appeal, the Texas Supreme Court has held. When the legislature decriminalizes conduct and allows for retroactive application of a new law, pending convictions based on that conduct are invalid. “The appropriate remedy, in those instances, is to reverse the conviction and dismiss the prosecution,” the Court said.

The CCA explained that “when amendments to penal provisions invalidate an underlying conviction, the Legislature has validly exercised its power to determine criminal conduct and it has not usurped the governor’s power to grant clemency.” The governor’s clemency power only affects the punishment a person is subjected to; it does not empower the governor to affect the underlying conviction, the CCA observed citing to Article IV § 11 of the Texas Constitution. That is, “a pardon implies guilt and does not obliterate the fact of the commission of the crime and the conviction.”

In reviewing previous decisions in which the CCA concluded the legislature had usurped the governor’s clemency power, the CCA explained that those cases did not involve legislative repeal of the statute the defendant was convicted of violating. Rather, they involved legislation that provided for (less severe) re-sentencing after conviction and sentencing. But the underlying conviction remained unaffected by the legislation. Because that legislation affected only the punishment (sentence) and not the conviction itself, the CCA concluded that it usurped the governor’s clemency power, which operates to mitigate or eliminate the punishment upon conviction.

The CCA distinguished the current case from those in which there was a violation of the Separation of Powers Clause. The bill did not authorize new, less severe sentences for certain convictions. Rather, the “Legislature categorically determined that certain conduct was not criminal; the amendments reflecting this decision affected the validity of convictions, not just sentences. There was no transfer of clemency discretion from the Governor to the Judiciary.” According to the CCA, the effect of the savings clause in the bill was to eliminate the consequences of a conviction due to the invalidity of the conviction itself, not a commutation or pardon of the sentence.

The savings clause does not usurp or disrupt the governor’s clemency power. The governor can still grant clemency to those individuals whose convictions became final before the effective date of the bill. As such, the legislature did not prevent the executive branch from effectively exercising its clemency power in general. Therefore, the CCA held that the savings clause does not violate the Separation of Powers Clause of the Texas Constitution.

Accordingly, the CCA vacated Vandyke’s judgment of conviction. See: Vandyke v. State, 2017 Tex. Crim. App. LEXIS 1311 (2017). 

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Related legal case

Vandyke v. State



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