Summary

Article II, section 1 of the Texas Constitution separates the powers of Texas government into the legislative, executive, and judicial branches|A court would likely hold that a judge\\'s award of diligent participation credit under Code of Criminal Procedure subsection 15(h)(6) does not interfere with an expressly granted executive power and thus does not violate article II, section 1|Code of Criminal Procedure subsection 15(h)(6) gives the judge of the sentencing court the discretion, if the defendant satifies certain conditions, to shorten the time a defendant is required to serve in a state felony facility by up to twenty percent|In order to receive diligent participation credit under Code of Criminal Procedure subsec. 15(h)6), a defendant must first \\"diligently participate\\" in one of the specified types of rehabilitative programs. Only then may the judge award commutation. The statute does not permit or require the judge to give credit that has not first been earned.|Code of Criminal Procedure subsection 15(h)(6) gives the judge of the sentencing court the discretion, if the defendant satifies certain conditions, to shorten the time a defendant is required to serve in a state jail felony facility by up to twenty percent.|Diligent participation credits shorten a defendant\\'s required term of confinement, effectively imposing a less severe sentence.|A statute that required a judge to resentence a defendant in a manner that resulted in a shorter sentence was held to be an unconstitutional extension by the Legislature of commutation \\"as a mere gift or a matter of clemency\\" because the defendant could receive a reduced sentence simply by filing a motion.|The Court of Criminal Appeals upheld the constitutionality of a statute that granted commutation only after a convict, \\"by his own good conduct, had earned it.\\"|Under Texas Code of Criminal Procedure subsection 15(h)(6), a defendant must first \\"diligently participate\\" in one of the specified types of rehabilitative program in order to be entitled to diligent participation credit.

Opinion File

ga1000.pdf