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"Did the court of appeals err in holding that the savings clause of S.B. 746 violated the separation of power clause of the Texas Constitution so even though Appellant's appeal was pending when the Texas legislature amended chapter 841 Health & Safety Code to decriminalize the conduct for which Appellant was convicted, and since the amendments would have applied to Appellant since his conviction was not final when the amendments went into effect but for the savings clause being declared unconstitutional Appellant conviction should not have been reversed."
Vandyke pled guilty to violating civil commitment requirements under the sexually violent predator statute. The indictment alleged that he failed to complete a mandated outpatient treatment program. While his conviction was on appeal, the Legislature amended the statute to eliminate the failure to complete sex offender treatment as a basis for prosecution. The savings clause of the statute provides that a final conviction that exists on the effective date of the act is unaffected by the change in the law.
The court of appeals noted that, although the statute does not define "final conviction," the Legislature must have intended that the change in the law apply to cases then on appeal in light of case law holding that a conviction is not final while on appeal. However, the court of appeals held, decriminalizing an act after conviction under a valid statute amounts to an act of clemency, which only the executive branch has the power to do. Therefore, the Legislature's attempt to grant clemency violated the separation of powers doctrine under Ex parte Giles, 502 S.W.2d 774 (Tex. Crim. App. 1973).
Vandyke contends Giles is distinguishable because the statute in that case allowed the commutation of a convicted defendant's sentence even if his conviction was final. Here, the statute does not authorize a court to reverse a conviction that is final. He also points to precedent from the Court of Criminal Appeals holding that when a statute is repealed and no other penalty is substituted, offenders with non-final convictions under the repealed law are exempt from punishment.