- Associated Press - Thursday, May 17, 2018

HOUSTON (AP) - A 61-year-old Texas man serving life in prison for killing a Houston police officer more than 40 years ago has lost a federal court appeal challenging a change in Texas law that he argued unfairly makes it more difficult for him to be paroled.

Inmate Richard Delain Kyles, convicted of the 1975 fatal shooting officer Johnny Bamsch, argued his parole should be governed by laws on the books at the time of his 1976 conviction, when two favorable votes from a three-member parole board panel could win release. Current law requires prisoners convicted of a capital crime to receive a two-thirds vote of all seven members of the Texas Board of Pardons and Paroles.

The 5th U.S. Circuit Court of Appeals late Wednesday rejected the appeal from Kyles, who’s been acting as his own lawyer in the federal courts.

“The board’s use/misuse of new statutes has caused Kyles irreparable harm of prolonged confinement beyond requirement of burdens and duties annexed to his crime on date of occurrence,” Kyles wrote in a court filing. He argued the change amounted to increased punishment, an ex post facto law prohibited by the U.S. Constitution.

Kyles also contended that in a parole hearing he received two favorable votes that would have been enough for him to win release if those two parole board members were voting under the old procedure.

“The problem is the ‘if,’” a three-judge panel of the 5th Circuit court said in its ruling, describing his arguments as speculative. “Kyles cannot show that a randomly selected three-member panel would have included the two members who voted in his favor.”

The judges said his “conjecture about what would have happened under the old system is not enough to establish the likelihood of increased punishment that an ex post facto violation requires.” The court also rejected arguments that Kyles’ due process rights were violated.

Kyles, an inmate at the Texas Department of Criminal Justice Ramsey I Unit south of Houston in Brazoria County, has been eligible for parole since 1982, according to prison records. Parole board officials said Thursday changes approved by Texas lawmakers affecting capital cases like his took effect in 1993 and 1995.

Bamsch, 27, was a Houston officer for about 2½ years when he was fatally shot about 1 a.m. on Jan. 30, 1975, while investigating suspicious activity at a convenience store. Kyles, arrested for his death, was 18 at the time.

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