Shepard v. Houston

SHEPARD v. HOUSTON 	399
Cite as 289 Neb. 399
G eorGe Shepard, and all other inmateS in
a Similar Situation, appelleeS, v. robert p.
houSton, director, nebraSka department
of correctional ServiceS, in hiS official
and individual capacitieS, appellant.
855 N.W.2d 559
Filed November 7, 2014. 	No. S-13-1032.
1. Constitutional Law. Constitutional interpretation presents a question of law.
2. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts con-
sider in determining whether they may properly decide a controversy.
3. Courts. The fundamental principle of ripeness is that courts should avoid entan-
gling themselves, through premature adjudication, in abstract disagreements
based on contingent future events that may not occur at all or may not occur
as anticipated.
4. Courts: Jurisdiction. A determination of ripeness depends upon the circum-
stances in a given case and is a question of degree.
5. Courts: Jurisdiction: Appeal and Error. With regard to the jurisdictional aspect
of ripeness, an appellate court employs a two-part test in which it considers (1)
the fitness of the issues for judicial decision and (2) the hardship of the parties of
withholding court consideration.
6. Actions. Generally, a case is ripe when no further factual development is neces-
sary to clarify a concrete legal dispute susceptible to specific judicial relief, as
distinguished from an advisory opinion regarding contingent future events.
7. Constitutional Law: Criminal Law. The Ex Post Facto Clauses forbid the appli-
cation of any new punitive measure to a crime already consummated.
8. Constitutional Law: Statutes: Legislature. The Ex Post Facto Clauses ensure
that individuals have fair warning of applicable laws, and they guard against
vindictive legislative action.
9. Constitutional Law: Criminal Law: Statutes. To fall within the ex post facto
prohibition, a law must be retrospective or retroactive—that is, it must apply to
events occurring before its enactment—and it must disadvantage the offender
affected by it either by altering the definition of criminal conduct or by increasing
the punishment for the crime.
10. ____: ____: ____. Any statute that punishes as a crime an act previously com-
mitted which was innocent when done, which makes more burdensome the
punishment for a crime after its commission, or which deprives one charged with
a crime of any defense available according to law at the time when the act was
committed is prohibited as ex post facto.
11. 	Constitutional Law. Subtle ex post facto violations are no more permissible than
overt ones.
12. Criminal Law: DNA Testing. When a law requiring a DNA sample pun-
ishes refusal to provide a sample as an offense separate from the offense that
made the person subject to DNA sampling, such law does not violate ex post
facto prohibitions.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:33 AM CST

400 	289 NEBRASKA REPORTS
13. DNA Testing: Statutes: Sentences. Regardless of whether the requirement of
a DNA sample is itself considered civil, Neb. Rev. Stat. § 29-4106(2) (Cum.
Supp. 2012) is punitive in mandating forfeiture of all good time and thereby
increasing the period of a defendant’s incarceration.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
andrew r. JacobSen, Judge. Affirmed.
Jon Bruning, Attorney General, and Jessica M. Forch for
appellant.
George Shepard, pro se.
heavican, c.J., wriGht, connolly, Stephan, mccormack,
miller-lerman, and caSSel, JJ.
mccormack, J.
I. NATURE OF CASE
Neb. Rev. Stat. § 29-4106(2) (Cum. Supp. 2012) provides
for retroactive application of its requirement that all inmates
convicted of a felony sex offense or other specified offense
submit a DNA sample before being discharged from confine-
ment. Section 29-4106(2) also specifically provides that those
inmates convicted before the passage of § 29-4106 “shall not
be released prior to the expiration of his or her maximum term
of confinement or revocation or discharge from his or her
probation unless and until a DNA sample has been collected.”
In effect, § 29-4106(2) provides that an inmate will forfeit his
or her past and future good time credit if the inmate refuses
to submit a DNA sample. The issue is whether § 29-4106(2),
as applied to an inmate who was convicted before its passage,
violated the Ex Post Facto Clauses of U.S. Const. art. I, § 10,
and Neb. Const. art. I, § 16.
II. BACKGROUND
George Shepard was sentenced on July 11, 1990, to a com-
bined term of up to 50 years’ imprisonment. He was sentenced
to 40 years’ imprisonment for sexual assault in the first degree

SHEPARD v. HOUSTON 	401
Cite as 289 Neb. 399
and 10 years’ imprisonment for manufacturing child pornogra-
phy, the sentences to run consecutively.1
Under the good time law in effect at the time of Shepard’s
crimes, Shepard’s projected mandatory discharge date was May
4, 2015. Neb. Rev. Stat. § 83-1,107 (Reissue 1987) provided:
(1) The chief executive officer of a facility shall reduce
for good behavior the term of a committed offender as
follows: Two months on the first year, two months on the
second year, three months on the third year, four months
for each succeeding year of his term and pro rata for any
part thereof which is less than a year. The total of all such
reductions shall be credited from the date of sentence,
which shall include any term of confinement prior to
sentence and commitment as provided pursuant to section
83-1,106, and shall be deducted:
(a) From his minimum term, to determine the date of
his eligibility for release on parole; and
(b) From his maximum term, to determine the date
when his discharge from the custody of the state becomes
mandatory.
(2) 	While 	the 	offender 	is 	in 	the 	custody 	of 	the
Department of Correctional Services, reductions of such
terms may be forfeited, withheld and restored by the chief
executive officer of the facility, with the approval of the
director after the offender has been consulted regarding
the charges of misconduct.
(3) While the offender is in the custody of the Board
of Parole, reductions of such terms may be forfeited,
withheld, and restored by the Parole Administrator with
the approval of the director after the offender has been
consulted regarding the charges of misconduct or breach
of the conditions of his parole. In addition, the Board of
Parole may recommend such forfeitures of good time to
the director.
1 See State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).

402 	289 NEBRASKA REPORTS
(4) Good time or other reductions of sentence granted
under the provisions of any law prior to August 24, 1975,
may be forfeited, withheld, or restored in accordance with
the terms of the act.
Neb. 	Rev. 	Stat. 	§ 	83-1,107.01 	(Reissue 	1987) 	further
provided:
(1) In addition to the reductions provided in section
83-1,107, an offender shall receive, for faithful perform-
ance of his assigned duties, a further reduction of five
days for each month of his term. The total of all such
reductions shall be deducted from his maximum term to
determine the date when his discharge from the custody
of the state becomes mandatory.
(2) 	While 	the 	offender 	is 	in 	the 	custody 	of 	the
Department of Correctional Services, reductions of such
terms may be forfeited, withheld, and restored by the
chief executive officer of the facility, with the approval of
the director after the offender has been consulted regard-
ing any charges of misconduct.
(3) While the offender is in the custody of the Board
of Parole, reductions of such terms may be forfeited,
withheld, and restored by the Parole Administrator with
the approval of the director after the offender has been
consulted regarding the charges of misconduct or breach
of the conditions of his parole. In addition, the Board of
Parole may recommend such forfeitures of good time to
the director.
Disciplinary procedures for the Nebraska Department of
Correctional Services (Department) are governed by Neb.
Rev. Stat. §§ 83-4,109 to 83-4,123 (Reissue 2008). Under
§ 83-4,111(3), which continues to be in essentially the same
form as it was at the time of Shepard’s crimes, the Department
has broad powers to adopt and promulgate rules and regula-
tions, including criteria concerning good time credit, but such
rules and regulations “shall in no manner deprive an inmate of
any rights and privileges to which he or she is entitled under
other provisions of law.” Under § 83-4,114.01(2), previously
located at Neb. Rev. Stat. § 83-185(2) (Reissue 1987), good
time may be forfeited only in cases involving “flagrant or

SHEPARD v. HOUSTON 	403
Cite as 289 Neb. 399
serious misconduct.” Further, pursuant to § 83-4,122, in disci-
plinary cases involving the loss of good time, forfeiture must
be done through disciplinary procedures adopted by the direc-
tor of the Department that are consistent with various require-
ments of the statute.
Various factors could be considered before making a deter-
mination regarding a committed offender’s actual release on
parole upon the date of eligibility.2 As for the mandatory
discharge date, however, the Board of Parole was required
to discharge a parolee from parole and the Department was
required to discharge a legal offender from the custody of the
Department “when the time served . . . equals the maximum
term less all good time reductions.”3
In 1997, the Legislature passed provisions under the DNA
Detection of Sexual and Violent Offenders Act, now known
as the DNA Identification Information Act (the Act),4 for col-
lecting DNA samples from any person convicted of a felony
sex offense or other specified offense, in order to place such
sample for use in the State DNA Sample Bank. Since 1997,
§ 29-4106(2) has provided for the retroactive application of the
Act to persons convicted before the effective date of the Act
but still serving a term of confinement on the effective date of
the Act.
Under § 29-4106(2), such person shall not be released prior
to the expiration of his or her maximum term of confine-
ment unless and until a DNA sample has been drawn. Section
29-4106(2) currently states:
A person who has been convicted of a felony offense
or other specified offense before July 15, 2010, who
does not have a DNA sample available for use in the
State DNA Sample Bank, and who is still serving a term
of confinement or probation for such felony offense or
other specified offense on July 15, 2010, shall not be
released prior to the expiration of his or her maximum
2 See Neb. Rev. Stat. § 83-1,115 (Reissue 1999).
3 Neb. Rev. Stat. § 83-1,118(3) and (4) (Reissue 1987).
4 See Neb. Rev. Stat. §§ 29-4101 to 29-4115.01 (Reissue 2008 & Cum.
Supp. 2012).

404 	289 NEBRASKA REPORTS
term of confinement or revocation or discharge from
his or her probation unless and until a DNA sample has
been collected.
(Emphasis supplied.)
Department administrative regulation (A.R.) 116.04 imple-
ments this statute and provides that an inmate’s refusal to
provide a DNA sample will result in administrative with-
holding of all good time and that the inmate’s sentence will
be recalculated to the maximum prison term. Department
employees testified that under A.R. 116.04, the Department
gives inmates until 7 days prior to their release date, as cal-
culated with good time credit, to submit their DNA sample.
If an inmate does not submit a sample by that time, the
inmate is given notice of a classification hearing. The deputy
director over institutions for the Department explained that
under A.R. 116.04, good time credit is taken away through a
reclassification process rather than through a disciplinary pro-
cedure. The reclassification results in forfeiture of the good
time. The deputy director explained, “That’s what our policy
allows for and that’s carrying out what we believe state law
says.” The deputy director was aware of no other behaviors
for which good time credits would be forfeited through a
reclassification process.
The crimes for which Shepard was sentenced in 1990 are
subject to DNA testing under § 29-4106. Section 29-4106 was
not in effect when the crimes were committed. On August 18,
2010, Shepard was asked by the Department staff to provide
a DNA sample. He declined to do so, and he has not given
a DNA sample since that time. The deputy director testified
that if Shepard continued to refuse to submit to DNA testing,
his good time credit would be forfeited through reclassifica-
tion under A.R. 116.04. Although in 2011, Shepard apparently
would have been parole eligible based on good time, the record
does not clearly reflect the reason why Shepard has not been
released on parole.
After dismissing a prior complaint as not yet ripe for review,
on April 7, 2011, the district court granted Shepard leave to file
an amended complaint challenging the impending forfeiture

SHEPARD v. HOUSTON 	405
Cite as 289 Neb. 399
of his good time credit. After sustaining various motions to
dismiss and for summary judgment, the only remaining claim
of Shepard’s amended complaint was for declaratory judg-
ment challenging the application of § 29-4106 as violative of
the prohibition against ex post facto laws. The only remaining
defendant was Robert P. Houston in his official capacity as
director of the Department.
The court noted that Shepard had failed to make the agency
promulgating the challenged rule a party to the action, as
required by the Uniform Declaratory Judgments Act, but the
court found that the action challenging the validity of § 29-4106
was not so barred. The court further found Shepard’s declara-
tory judgment claim was ripe for review. The court reasoned
that although § 29-4106(2) and A.R. 116.04 would not poten-
tially be applied to Shepard until his May 4, 2015, release date,
declaratory judgment is appropriate under the circumstances
to prevent future harm. The court did not address Shepard’s
parole eligibility.
The district court declared § 29-4106(2) unconstitutional
under the Ex Post Facto Clauses of U.S. Const. art. I, § 10,
and Neb. Const. art. I, § 16, as applied to Shepard, an inmate
sentenced prior to the statute’s enactment. Houston was accord-
ingly enjoined from withholding from Shepard any good time
under the provisions of § 29-4106(2).
The court reasoned that the effect of § 29-4106(2) was
to retroactively repeal the good time statutes as to Shepard
if he did not provide a DNA sample. The court noted that
Shepard had not been found guilty of any misconduct while
incarcerated. The court stated that while merely requiring a
DNA sample would not impose any additional penalty on an
inmate, the language of the statute eliminating good time credit
does impose an additional penalty not present at the time of
Shepard’s convictions.
The court rejected the argument that the forfeiture of good
time for refusing to submit to DNA testing is a result of a vio-
lation of valid administrative prison regulations rather than the
imposition of the penalty imposed by statute. The court said
that A.R. 116.04 is facially a mere enforcement of the statute

406 	289 NEBRASKA REPORTS
and that Neb. Rev. Stat. § 83-173(6) (Reissue 2008) does not
grant the Department director authority to impose penalties
for failure to comply with a statutory requirement. And, under
§ 83-4,111, discipline may be imposed only for conduct out-
lined in the “Code of Offenses” adopted by the Department and
appearing in title 68, chapter 5, of the Nebraska Administrative
Code. Failure to submit a DNA sample, the court noted, is
not listed as an offense within the code of offenses. While
“[d]isobeying an [o]rder” and “[v]iolation of [r]egulations” are
listed as offenses, loss of good time may be imposed only for
such violations if they are “serious or flagrant,” and no more
than 1 month of good time can be lost for such serious and
flagrant violations.5
Houston appeals. Shepard does not cross-appeal.
III. ASSIGNMENTS OF ERROR
Houston assigns that the district court erred in (1) determin-
ing Shepard’s action was ripe for review and (2) determining
that § 29-4106(2) violates the constitutional prohibition against
ex post facto laws, “as this statute is a Constitutional civil
regulatory scheme which does not impose punishment.”
IV. STANDARD OF REVIEW
[1] Constitutional interpretation presents a question of law.6
V. ANALYSIS
The only issues presented by the parties in this appeal are
whether the district court erred in determining that Shepard’s
claim was ripe for review and whether it erred in conclud-
ing 	that 	the 	retroactive 	application 	of 	§ 	29-4106(2) 	was
unconstitutional.
1. ripeneSS
We first address the question of ripeness. According to
Houston, Shepard’s claim is not ripe, because “[t]here is merely
a possible threat of harm, sometime in the future, and we
5 See 68 Neb. Admin. Code, ch. 5, § 005, and ch. 6, § 011 (2008).
6 Krings v. Garfield Cty. Bd. of Equal., 286 Neb. 352, 835 N.W.2d 750
(2013).

SHEPARD v. HOUSTON 	407
Cite as 289 Neb. 399
have no idea whether that harm will even come to fruition.”7
We disagree.
[2,3] Ripeness is a justiciability doctrine that courts con-
sider in determining whether they may properly decide a
controversy.8 The fundamental principle of ripeness is that
courts should avoid entangling themselves, through premature
adjudication, in abstract disagreements based on contingent
future events that may not occur at all or may not occur
as anticipated.9
[4-6] A determination of ripeness depends upon the cir-
cumstances in a given case and is a question of degree.10
With regard to the jurisdictional aspect of ripeness, we
employ a two-part test in which we consider (1) the fitness
of the issues for judicial decision and (2) the hardship of the
parties of withholding court consideration. Because ripeness
is peculiarly a question of timing, it is the situation now
rather than the situation at the time of the district court’s
decision that must govern.11 Generally, a case is ripe when
no further factual development is necessary to clarify a con-
crete legal dispute susceptible to specific judicial relief, as
distinguished from an advisory opinion regarding contingent
future events.12
First, this appeal presents a constitutional question that is
essentially legal in nature and may be resolved without further
factual development.13
Second, this appeal presents a concrete controversy and
does not present merely abstract disagreements based on con-
tingent future events that may not occur at all or may not
7 Brief for appellant at 11.
8 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
9 Id.
10 See Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547,
772 N.W.2d 88 (2009).
11 Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S. Ct. 335, 42
L. Ed. 2d 320 (1974).
12 Pennfield Oil Co. v. Winstrom, supra note 8.
13 See City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137
(2008).

408 	289 NEBRASKA REPORTS
occur as anticipated. Shepard has already declined to submit
a DNA sample and professes that he will continue to do so.
The deputy director of the Department testified that Shepard’s
good time will be forfeited if he continues to refuse to submit
a DNA sample. The deputy director, indeed, has no discretion
under § 29-4106(2) to do otherwise. While it is possible that
Shepard will change his mind, thereby making the controversy
moot, that possibility is more speculative than the present real-
ity. The hypothetical possibility of future mootness does not
render the present appeal unripe.
Finally, addressing the underlying merits in the present
appeal will avoid significant hardship. The Department does
not conduct the reclassification proceedings that result in good
time forfeiture until 7 days before the mandatory release date.
If we decline to address the merits in this appeal and demand
that the process of reclassification be complete before we con-
sider the matter ripe, then it will not be possible for Shepard’s
action to be determined before Shepard would be subjected
to potentially illegal incarceration. Deciding the case now
avoids the possibility of the irreparable harm to Shepard of
being imprisoned past the mandatory discharge date (without
forfeiture) of May 4, 2015. In addition, by deciding the case
now, we avoid the needless waste of judicial resources through
future relitigation of the issues.14
Having found the matter ripe for review, we turn to the
underlying merits of Shepard’s ex post facto claim.
2. ex poSt facto
Under the laws in effect at the time Shepard committed
his crimes, he was entitled to mandatory “regular” good time,
automatically earned under the formula stated above, as well
as “meritorious” good time, if earned though good conduct.15
His parole eligibility date was calculated by deducting good
time from his minimum sentence, and his mandatory dis-
charge date was calculated by deducting good time from his
14 See id.
15 See Johnson v. Bartee, 228 Neb. 111, 421 N.W.2d 439 (1988).

SHEPARD v. HOUSTON 	409
Cite as 289 Neb. 399
maximum sentence.16 This appeal, however, concerns only
Shepard’s mandatory discharge date.
Good time earned could be forfeited under the scheme
in effect at the time of Shepard’s crimes, but only pursu-
ant to specified procedures and regulations and only, under
§ 83-4,114.01(2), for “flagrant or serious misconduct.” There
were no statutory provisions allowing for the forfeiture of
future mandatory good time or for general ineligibility for par-
ticipation in the good time scheme as a result of misconduct.
There were no provisions mandating that inmates provide a
DNA sample.
By changing the release date to the maximum term of
confinement 	or 	revocation 	or 	discharge 	from 	probation,
§ 29-4106(2) effectively provides for mandatory forfeiture of
participation in the good time credit system upon the act of
refusing to submit a DNA sample under the requirements first
passed in 1997. The State does not claim that the refusal to
provide a DNA sample is an act of “flagrant or serious mis-
conduct,” and it is clear from the record that when a convicted
person refuses to provide a DNA sample, the Department does
not change the mandatory discharge date pursuant to proce-
dures provided for disciplinary forfeiture of good time.
Facially, § 29-4106(2) applies retroactively to any person
who has been convicted of a felony offense or other specified
offense before July 15, 2010. It thus facially encompasses both
inmates whose crimes occurred before the passage of the Act in
1997 and those whose crimes occurred after the passage of the
Act. As applied to Shepard, however, § 29-4106(2) is retroac-
tive. Section 29-4106(2) plainly expanded the scope of poten-
tial forfeiture of good time beyond the limitations to flagrant
or serious misconduct in existence at the time of his crimes.
Further, by mandating that the inmate shall not be released
prior to the expiration of his or her maximum term of confine-
ment or revocation or discharge from his or her probation,
§ 29-4106(2) increased the amount of good time that could be
lost for any singular act.
16 See § 83-1,107.

410 	289 NEBRASKA REPORTS
Nevertheless, the State argues that providing a DNA sample
is not in itself punitive. And to the extent that Shepard is
punished for refusing to provide a DNA sample, the State
argues he was given fair notice of the consequences before
he refused.
For the reasons that follow, we agree with Shepard and the
district court that the retroactive expansion of the scope of
good time forfeiture violated the prohibitions against ex post
facto laws, found in the Ex Post Facto Clauses of U.S. Const.
art. I, § 10, and Neb. Const. art. I, § 16. While the requirement
of DNA sampling, in itself, may be civil, the attendant for-
feiture of good time increases the quantum of punishment for
Shepard’s original crimes beyond the measure of punishment
legally stated at the time they were committed.
(a) Ex Post Facto Prohibitions
[7] The ex post facto prohibitions found in the Ex Post Facto
Clauses of U.S. Const. art. I, § 10, and Neb. Const. art. I,
§ 16, forbid Congress and the states to enact any law “‘which
imposes a punishment for an act which was not punishable at
the time it was committed; or imposes additional punishment to
that then prescribed.’”17 Stated another way, the Ex Post Facto
Clauses “‘forbid[] the application of any new punitive measure
to a crime already consummated.’”18
[8] The Ex Post Facto Clauses ensure that individuals have
fair warning of applicable laws, and they guard against vindic-
tive legislative action.19 Even where these concerns are not
directly implicated, the clauses also safeguard “‘a fundamental
fairness interest . . . in having the government abide by the
rules of law it establishes to govern the circumstances under
which it can deprive a person of his or her liberty or life.’”20
17 Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17
(1981).
18 California Dept. of Corrections v. Morales, 514 U.S. 499, 505, 115 S. Ct.
1597, 131 L. Ed. 2d 588 (1995).
19 See Peugh v. U.S., ___ U.S. ___, 133 S. Ct. 2072, 186 L. Ed. 2d 84
(2013).
20 Id., 133 S. Ct. at 2085.

SHEPARD v. HOUSTON 	411
Cite as 289 Neb. 399
[9] To fall within the ex post facto prohibition, a law must
be retrospective or retroactive21—that is, it must apply to
events occurring before its enactment—and it must disadvan-
tage the offender affected by it either by altering the defini-
tion of criminal conduct or by increasing the punishment for
the crime.22
[10,11] Only retroactive criminal punishment for past acts
is prohibited.23 The retroactive application of civil disabilities
and sanctions is permitted.24 But any statute that punishes as a
crime an act previously committed which was innocent when
done, which makes more burdensome the punishment for a
crime after its commission, or which deprives one charged with
a crime of any defense available according to law at the time
when the act was committed is prohibited as ex post facto.25
Subtle ex post facto violations are no more permissible than
overt ones.26
(b) Retrospective Increases in Quantum
of Punishment Through Changes in
Good Time Scheme Violate Ex
Post Facto Principles
In Weaver v. Graham,27 the U.S. Supreme Court held that
it is a violation of the prohibition against ex post facto laws
to apply a new formula for calculating future good time cred-
its to a person incarcerated for a crime committed before the
new law was passed. The new law reduced the amount of
good time automatically available through performance of
satisfactory work and avoidance of disciplinary violations, but
21 See 16A C.J.S. Constitutional Law § 559 (2005).
22 See Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 137 L. Ed. 2d 63
(1997).
23 State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
24 Id.
25 State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012). See, also, Carmell
v. Texas, 529 U.S. 513, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000); Collins
v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990).
26 Collins v. Youngblood, supra note 25.
27 Weaver v. Graham, supra note 17.

412 	289 NEBRASKA REPORTS
increased the amount of discretionary good time available for
specific productive conduct.28 The Court reasoned that regard-
less of whether the good time was a vested right, there was
a lack of fair notice and governmental restraint because the
legislature increased the inmate’s punishment beyond what
was prescribed when the crime was consummated.29 “[E]ven if
a statute merely alters penal provisions accorded by the grace
of the legislature, it violates the Clause if it is both retrospec-
tive and more onerous than the law in effect on the date of
the offense.”30
The Court in Weaver v. Graham rejected the state’s argu-
ment that the law altering the availability of good time was
prospective, and not retrospective, because it operated only
upon the accumulation of good time after its effective date. The
Court explained:
This argument fails to acknowledge that it is the effect,
not the form, of the law that determines whether it
is ex post facto. The critical question is whether the
law changes the legal consequences of acts completed
before its effective date. In the context of this case, this
question can be recast as asking whether [the statute]
applies to prisoners convicted for acts committed before
the provision’s effective date. Clearly, the answer is in
the affirmative.31
The Court in Weaver v. Graham also rejected the state’s
argument that the new good time statute was not retrospective,
because good time is not part of the punishment annexed to the
crime. The Court explained:
First, we need not determine whether the prospect of
the gain time was in some technical sense part of the
sentence to conclude that it in fact is one determinant of
petitioner’s prison term—and that his effective sentence
is altered once this determinant is changed. . . . Second,
28 Id. See, also, Lynce v. Mathis, supra note 22.
29 Weaver v. Graham, supra note 17.
30 Id., 450 U.S. at 30-31.
31 Id., 450 U.S. at 31.

SHEPARD v. HOUSTON 	413
Cite as 289 Neb. 399
we have held that a statute may be retrospective even if it
alters punitive conditions outside the sentence.32
The Court concluded that the new good time statute “substan-
tially alters the consequences attached to a crime already com-
pleted, and therefore changes ‘the quantum of punishment.’”33
Finally, the Court rejected the state’s argument that the net
effect of all the new good time provisions was to increase
availability of good time deduction and, thus, that the change
was not to the defendant’s disadvantage. The Court held that
the alteration in the quantum of punishment was to the inmate’s
disadvantage because there was a reduced opportunity to
shorten time in prison “simply through good conduct.”34 The
Court explained:
The fact remains that an inmate who performs satisfac-
tory work and avoids disciplinary violations could obtain
more gain time per month under the repealed provision
. . . than he could for the same conduct under the new
provision . . . . To make up the difference, the inmate
has to satisfy the extra conditions specified by the dis-
cretionary gain-time provisions. Even then, the award
of the extra gain time is purely discretionary, contingent
on both the wishes of the correctional authorities and
special behavior by the inmate, such as saving a life or
diligent performance in an academic program. . . . In
contrast, under both the new and old statutes, an inmate
is automatically entitled to the monthly gain time simply
for avoiding disciplinary infractions and performing his
assigned tasks.35
Because the new good time scheme made more onerous the
punishment for the crimes committed before its enactment, the
Court in Weaver v. Graham held that it violated the prohibition
against ex post facto laws.36
32 Id., 450 U.S. at 32.
33 Id., 450 U.S. at 33.
34 Id., 450 U.S. at 34.
35 Id., 450 U.S. at 35.
36 Weaver v. Graham, supra note 17.

414 	289 NEBRASKA REPORTS
(c) Retroactive Application of Changes to
Discretionary Elements of Parole Only
Ex Post Facto if Significant Risk of
Lengthening Time Incarcerated
Such alteration of the substantive formula for good time
is treated distinctly from the retrospective application of
changes to discretionary elements of the parole process. The
U.S. Supreme Court has observed that “[w]hether retroactive
application of a particular change in parole law respects the
prohibition on ex post facto legislation is often a question of
particular difficulty when the discretion vested in a parole
board is taken into account.”37 The question in such cases
is a “matter of degree” and depends on whether the retroac-
tive application of the change creates “‘a sufficient risk of
increasing the measure of punishment attached to the cov-
ered crimes.’”38
In two cases, the U.S. Supreme Court held that retroac-
tive changes that decreased the frequency of parole hearings
did not create a sufficient risk of increasing the likelihood
of longer incarceration that would violate the ex post facto
prohibition.39 In Garner v. Jones40 and California Dept. of
Corrections v. Morales,41 the Court reasoned that the changes
to the parole laws in question (1) did not change the substan-
tive formula for securing any reductions to sentence ranges,
(2) did not affect the standards for determining a prisoner’s
suitability for parole and setting a release date, and (3) did not
37 Garner v. Jones, 529 U.S. 244, 250, 120 S. Ct. 1362, 146 L. Ed. 2d 236
(2000).
38 Id.
39 See, Garner v. Jones, supra note 37; California Dept. of Corrections v.
Morales, supra note 18. See, also, Moore v. Nebraska Bd. of Parole, 12
Neb. App. 525, 679 N.W.2d 427 (2004).
40 Garner v. Jones, supra note 37.
41 California Dept. of Corrections v. Morales, supra note 18.

SHEPARD v. HOUSTON 	415
Cite as 289 Neb. 399
present any “significant risk”42 of lengthening the time spent
in prison.43
The Court explained that “the Ex Post Facto Clause should
not be employed for ‘the micromanagement of an endless array
of legislative adjustments to parole and sentencing procedures.’
. . . The States must have due flexibility in formulating parole
procedures and addressing problems associated with confine-
ment and release.”44 And, while
[t]he presence of discretion does not displace the
protections of the Ex Post Facto Clause, . . . to the
extent there inheres in ex post facto doctrine some idea
of actual or constructive notice[,] . . . where parole is
concerned discretion, by its very definition, is subject to
changes in the manner in which it is informed and then
exercised.45
The concurring opinion in Garner v. Jones advocated for a
distinction between the penalties that a person can anticipate
for the commission of a particular crime and the opportuni-
ties for mercy or clemency that may go to the reduction of the
penalty. The concurrence admitted, “At the margins, to be sure,
it may be difficult to distinguish between justice and mercy.”46
It illustrated then: “A statutory parole system that reduces a
prisoner’s sentence by fixed amounts of time for good behav-
ior during incarceration can realistically be viewed as an
entitlement—a reduction of the prescribed penalty—rather than
a discretionary grant of leniency. But that is immeasurably far
removed from the present case.”47
42 Garner v. Jones, supra note 37, 529 U.S. at 255.
43 See, id.; California Dept. of Corrections v. Morales, supra note 18.
44 Garner v. Jones, supra note 37, 529 U.S. at 252.
45 Id., 529 U.S. at 253.
46 Id., 529 U.S. at 258 (Scalia, J., concurring in part in judgment).
47 Id.

416 	289 NEBRASKA REPORTS
(d) Requiring DNA Sample
Is Not Punitive
The State is correct that, standing alone, requiring DNA
sampling is not punishment at all. Courts have consistently
held that requiring a convicted person to submit a DNA sample
does not violate the prohibition against ex post facto laws,
because such a requirement is not punitive.48
[12] Further, courts consistently hold that when a law requir-
ing a DNA sample punishes refusal to provide a sample as an
offense separate from the offense that made the person subject
to DNA sampling, such law does not violate ex post facto
prohibitions.49 Rather, the punishment is solely for the new
offense of refusing to provide the DNA sample—even though
the original offense may have been the “but for” reason for the
DNA sample requirement. Such punishment is not a new puni-
tive measure of the original offense.
This is similar to our Sex Offender Registration Act (SORA).
The requirement of registration, in itself, is not punitive.50
Further, we have held that although Neb. Rev. Stat. § 29-4011
(Cum. Supp. 2012) imposes a criminal penalty for those found
guilty of failing to register under SORA, such punishment is
not for behavior that occurred before the statute’s enactment.51
48 See, e.g., U.S. v. Coccia, 598 F.3d 293 (6th Cir. 2010); Johnson v.
Quander, 440 F.3d 489 (D.C. Cir. 2006); Shaffer v. Saffle, 148 F.3d 1180
(10th Cir. 1998); People v. Espana, 137 Cal. App. 4th 549, 40 Cal. Rptr.
3d 258 (2006); State v. Raines, 383 Md. 1, 857 A.2d 19 (2004); State v.
Norman, 660 N.W.2d 549 (N.D. 2003); Doe v. Gainer, 162 Ill. 2d 15, 642
N.E.2d 114, 204 Ill. Dec. 652 (1994).
49 See, e.g., U.S. v. Hook, 471 F.3d 766 (7th Cir. 2006); Word v. U.S.
Probation Dept., 439 F. Supp. 2d 497 (D.S.C. 2006); Vore v. U.S. Dept. of
Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003); In re D.L.C., 124 S.W.3d
354 (Tex. App. 2003).
50 In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009); Welvaert v.
Nebraska State Patrol, 268 Neb. 400, 683 N.W.2d 357 (2004); Slansky
v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004); State
v. Worm, supra note 23. See, also, Smith v. Doe, 538 U.S. 84, 123 S. Ct.
1140, 155 L. Ed. 2d 164 (2003).
51 See State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012).

SHEPARD v. HOUSTON 	417
Cite as 289 Neb. 399
It is “not additional punishment for the crimes that resulted in
a person’s being subject to SORA; instead, it punishes the act
of failing to comply with SORA once a person is subject to
its requirements.”52
At issue here, however, is not punishment of refusal to
submit a DNA sample as a separate offense. At issue here is
the mandatory forfeiture of all good time, and this forfeiture
results in an increased period of incarceration for the original
offense, which was committed before the statute’s enactment.
(e) Changes to Consequences of Original
Crime as Result of Failure to
Abide by New Rules
Section 29-4106(2) arguably falls under a class of “close
cases” wherein courts have traditionally had more difficulty
determining if the consequence for failure to adhere to new
prescriptions should be considered the continuing legal conse-
quence of the original crimes or the independent legal conse-
quence of later misconduct.53
The Sixth Circuit, in U.S. v. Reese,54 opined that if the
new punishment applies to everyone who has committed the
predicate offense without regard to any subsequent offense,
there is clearly an ex post facto violation. In contrast, an
increased punishment of the new crime, but based on recidi-
vism, has uniformly been upheld as constitutional.55 In such
cases, the punishment is not “‘for the earlier offense,’” even
though the punishment was a “but for” consequence of that
earlier offense.56
Changes 	to 	the 	consequences 	attendant 	to 	the 	original
crime, but based on new conduct subsequent to those changes,
52 Id. at 224, 817 N.W.2d at 269.
53 U.S. v. Reese, 71 F.3d 582, 588 (6th Cir. 1995).
54 Id.
55 See, e.g., Taylor v. State, 114 Neb. 257, 207 N.W. 207 (1926); Smith v.
State, 199 P.3d 1052 (Wyo. 2009); State v. Everett, 816 So. 2d 1272 (La.
2002); State v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001).
56 U.S. v. Reese, supra note 53, 71 F.3d at 589.

418 	289 NEBRASKA REPORTS
however, create more confusion. The Sixth Circuit framed the
relevant ex post facto question for these situations as: “Is there
fair notice, and is the punishment for the original conduct
being imposed or increased?”57
In the context of changes to release eligibility based on the
failure to provide a DNA sample, courts illustrate that the ex
post facto question is more specifically whether the subse-
quently established requirement lengthens the time incarcer-
ated under the original sentence and, if so, whether the inmate
was on fair notice at the time the crime was committed that
the requirement in question could change. Where the length
of incarceration is increased by virtue of the new law, the
distinction of whether the new law is ex post facto hinges
on whether the change involved matters of discretion—or
other changes clearly contemplated by the original statutory
scheme—or whether instead the change involved the standards
for determining a prisoner’s suitability for parole or for setting
a release date.
(i) Jones v. Murray—Forfeiture of Mandatory
Good Time for Refusing DNA Sample
Violated Ex Post Facto Principles
Thus, in Jones v. Murray,58 the Fourth Circuit held that a
statute that required a DNA sample from convicted felons and
sex offenders violated the prohibition against ex post facto
laws to the extent it could be enforced to modify manda-
tory parole.
The statutory scheme in force when the inmate in question
committed his crimes provided that every person “‘shall be
released on parole . . . six months prior to his date of final
discharge.’”59 The only exception at the time of the inmate’s
crimes was if new information was provided to the parole
board giving the board reasonable cause to believe that release
57 Id. at 590 (emphasis in original).
58 Jones v. Murray, 962 F.2d 302 (4th Cir. 1992).
59 Id. at 309 (emphasis omitted).

SHEPARD v. HOUSTON 	419
Cite as 289 Neb. 399
posed a clear and present danger to the life or physical safety
of any person.60
Subsequent to the inmate’s crimes, a DNA blood testing
requirement was passed, stating:
“Notwithstanding the provisions [providing for release
6 months before the date of final discharge with such
limited exception in the case of being a clear and pres-
ent danger], any person convicted of a felony who is in
custody after July 1, 1990, shall provide a blood sample
prior to his release.”61
The court in Jones v. Murray noted that the DNA testing
itself was not punitive. Further, the court observed in dicta
that it would not be contrary to the prohibitions against ex
post facto laws for violators to be administratively punished
“within the terms of the prisoners’ original sentence” for the
failure to provide samples.62 This was because “reasonable
prison regulations, and subsequent punishment for infractions
thereof, are contemplated as part of the sentence of every
prisoner.”63 “[S]ince a prisoner’s original sentence does not
embrace a right to one set of regulations over another, rea-
sonable amendments, too, fall within the anticipated sentence
of every inmate.”64 Accordingly, the statute did not violate
the prohibition against ex post facto in “its possible effect
in authorizing prison punishment, the denial of good-time
credits, or consideration by the parole board in granting dis-
cretionary parole to compel the inmate to provide a sample,
because it does not thereby alter any prisoner’s sentence for
past conduct.”65
However, the court held that punishing the refusal to
provide a DNA sample through the denial of the statutory
60 Id.
61 Id. at 308 (emphasis omitted).
62 Id. at 310.
63 Id. at 309.
64 Id. at 309-10.
65 Id. at 310.

420 	289 NEBRASKA REPORTS
6-month mandatory parole inherent to the original sentence
constituted after-the-fact punishment of the original crimes.
The court elaborated that the prisoner was being denied the
benefit present at the time of his original crimes of being enti-
tled to a 6-month reduction in sentence unless he constituted
a clear and present danger to society. There was no indication
that refusing to provide a DNA sample made the inmate a
clear and present danger to society.
The court severed that part of the DNA statute which
referred to modifying mandatory parole upon an inmate’s
refusal to provide a DNA sample.
(ii) State v. Henry County Dist. Ct.—Changes to
Laws Specifying New Conduct That Would
Earn or Forfeit Good Time Violated
Ex Post Facto Principles
Though not a DNA case, in State v. Henry County Dist. Ct.,66
the court similarly held that a statute that added requirements
to the previously automatic accrual of good time for simple
good conduct violated the prohibition against ex post facto
laws. The statutory scheme in place at the time the inmate
committed his crimes allowed an inmate to earn a specified
amount of good time for simple good conduct and another
specified amount of good time for participation in listed
activities. Subsequently, the statute was amended such that
an inmate who was required to participate in a sex offender
treatment program was ineligible for any good time reduction
of his or her sentence unless the inmate participated in and
completed the sex offender treatment program. An implement-
ing regulation stated that inmates required to participate in
sex offender treatment programs who refused treatment, were
removed from treatment, or failed program completion criteria
would not be eligible for earned time credits. The inmate in
question had been temporarily removed from a sex offender
treatment program for misconduct. During his removal, the
inmate did not earn any good time, thus ultimately extending
his tentative date for discharge by 4 months.
66 State v. Henry County Dist. Ct., 759 N.W.2d 793 (Iowa 2009).

SHEPARD v. HOUSTON 	421
Cite as 289 Neb. 399
The court in State v. Henry County Dist. Ct. reasoned
that to the extent the inmate could no longer automatically
earn good time merely by following institutional rules, with-
out participating in programs required by the director, the
amended statute and its implementing regulation made the
penalty for the inmate’s original crime more onerous. “[I]f
[the inmate] does not participate in the [sex offender treatment
program,] he will have a longer period of incarceration under
the amended statute than he would have had under the statute
in effect at the time of his sentencing.”67 In fact, the inmate’s
“failure to satisfactorily participate renders him ineligible to
earn any reduction in his sentence, even if he has no discipli-
nary infractions.”68
The court rejected the argument that the inmate was given
fair notice because his failure to participate in the sex offender
treatment occurred after the passage of the amended statute
and the pertinent regulation. The court found that the state’s
analysis was “misplaced.”69 The question, the court reasoned,
was whether the inmate was on notice when he committed
his original crime and was sentenced that he would not be
eligible for a reduction in his sentence by merely following
prison rules.70
The 	court 	also 	rejected 	the 	State’s 	argument 	that 	the
amended 	statute 	and 	the 	implementing 	regulation 	merely
changed the institutional rules contemplated as part of the
sentence of every prisoner. Although an inmate would have
been on notice that the precise conduct required to qualify for
good time credit could vary over time, an inmate “would have
had the expectation that, if he simply complied with institu-
tional rules, he could cut his sentence in half.”71 Furthermore,
given the wording of the statutes at the time of the inmate’s
crimes, 	he 	would 	have 	understood 	that 	compliance 	with
67 Id. at 800.
68 Id. at 801 (emphasis in original).
69 Id. at 799.
70 State v. Henry County Dist. Ct., supra note 66.
71 Id. at 802.

422 	289 NEBRASKA REPORTS
institutional rules and participation in treatment programs
were treated distinctly.
(iii) Courts Distinguish Jones v. Murray and
Find No Ex Post Facto Violation When
New Law or Regulation Does Not
Lengthen Time in Prison
In contrast to the facts presented in Jones v. Murray or State
v. Henry County Dist. Ct., internal prison sanctions for failure
to submit a DNA sample that do not affect the prisoner’s parole
eligibility date or discharge date have uniformly been held not
to violate the prohibition against ex post facto laws.72 Such
changes to internal punishments are contemplated as part of the
sentence of every prisoner.
Thus, in Padgett v. Ferrero,73 the court held that discipli-
nary action, followed by taking a sample by force in the event
of continued refusal, was not an ex post facto law, because
“no prison sentences will be extended because of the failure to
cooperate with the statute.”74 Likewise, the court in Cooper v.
Gammon75 held that it did not violate ex post facto prohibitions
for the prison to impose solitary confinement for an inmate
who refused to submit a DNA sample under laws enacted since
he committed his crimes.
(iv) Courts Distinguish Jones v. Murray and Find
No Ex Post Facto Violation When Inmate
Was on Notice at Time of Crimes That
the Act Was Available and Subject to
Changing Regulations or Discretion
Furthermore, courts have held that there is no violation
of the prohibition against ex post facto laws in the denial or
72 See, Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996); Padgett v. Ferrero,
294 F. Supp. 2d 1338 (N.D. Ga. 2003); Schreiber v. State, 666 N.W.2d 127
(Iowa 2003); Cooper v. Gammon, 943 S.W.2d 699 (Mo. App. 1997).
73 Padgett v. Ferrero, supra note 72.
74 Id. at 1344-45.
75 Cooper v. Gammon, supra note 72. See, also, Dominique v. Weld, supra
note 72.

SHEPARD v. HOUSTON 	423
Cite as 289 Neb. 399
revocation of parole or good time for refusing to submit a
DNA sample when the original statutory scheme made clear
that actual release, continued release, or the earning of good
time credits was subject to the discretion of prison officials or
to changing laws or regulations.76
Thus, where the convicted person was previously subject
to the generally stated requirement that while on supervised
release or parole, he or she follow parole agent directives and
not commit other crimes, then new laws criminalizing refusal
to submit a DNA sample and allowing for revocation of parole
or supervised release based on such refusal did not violate
the prohibition against ex post facto laws.77 Such potential
revocation of supervised release or parole did not increase
the plaintiff’s punishment for a prior conviction because, as
a part of the original sentence, the plaintiff was subject to
the mandatory conditions that he or she not commit another
crime (refusal to submit a DNA sample being a separate mis-
demeanor) and that he or she follow the instructions of the
probation officer.78 “[I]t is well settled that the conditions of
parole can be changed at any time.”79
Similarly, courts hold that there is no violation of the pro-
hibition against ex post facto laws when refusal to submit a
DNA sample is the basis for the discretionary determination
to deny release on parole.80 For example, in Dial v. Vaughn,81
the DNA testing statute provided that an inmate shall not be
76 U.S. v. Hook, supra note 49; Johnson v. Quander, supra note 48; Word
v. U.S. Probation Dept., supra note 49; Miller v. U.S. Parole Comm’n,
259 F. Supp. 2d 1166 (D. Kan. 2003); Cannon v. South Carolina Dept.
of Probation, 361 S.C. 425, 604 S.E.2d 709 (2006), reversed on other
grounds 371 S.C. 581, 641 S.E.2d 429 (2007).
77 See cases cited supra note 76.
78 Word v. U.S. Probation Dept., supra note 49; Miller v. U.S. Parole
Comm’n, supra note 76.
79 Miller v. U.S. Parole Comm’n, supra note 76, 259 F. Supp. 2d at 1170.
80 See, Boling v. Romer, 101 F.3d 1336 (10th Cir. 1997); Dial v. Vaughn, 733
A.2d 1 (Pa. Commw. 1999). See, also, Com. v. Derk, 895 A.2d 622 (Pa.
Super. 2006).
81 Dial v. Vaughn, supra note 80. See, also, Com. v. Derk, supra note 80.

424 	289 NEBRASKA REPORTS
released before expiration of the maximum term of confine-
ment unless and until the inmate provided a DNA sample.
The court interpreted this statute, however, as not changing
either the mandatory release date or the parole eligibility date.
Instead, the court focused on the distinction between parole
eligibility and parole release, and found that the statute gov-
erned only parole release. Then, the court explained that the
inmate was on notice from the time of his crimes that actual
release on parole depended upon full compliance with a variety
of prison rules and administrative requirements. Therefore, the
court concluded that the changes to the specifics of those rules
and regulations did not increase the measure of punishment
attached to the original sentence.
In Ewell v. Murray,82 the court held that where the origi-
nal law set forth broad categories of good time eligibility,
and where the inmate was on notice that the details of those
categories were subject to changing rules and regulations,
retrospective changes to the criteria for the categories of good
time eligibility did not violate the prohibition against ex post
facto laws.
At the time of the inmate’s crimes, the law considered in
Ewell v. Murray stated that inmates shall be given the oppor-
tunity to earn good time, based on a four-level classification
system. But the law explicitly stated that persons could be
reclassified according to prison rules and regulations. One of
those classifications meant that no good time could be earned.
Subsequently, an amended regulation provided for reclassifica-
tion to a good-time-ineligible category for refusing to provide
a DNA sample. Another amended regulation provided for for-
feiture of previously earned good time.
Considering some of the same laws at issue in Jones v.
Murray, the court in Ewell v. Murray explained that the good
time credits under the four categories were cumulative to
the mandatory 6-month release period discussed in Jones v.
82 Ewell v. Murray, 813 F. Supp. 1180 (W.D. Va. 1993). See, also, Smith v.
Beck, 176 N.C. App. 757, 627 S.E.2d 284 (2006).

SHEPARD v. HOUSTON 	425
Cite as 289 Neb. 399
Murray. These laws were distinguishable from changes affect-
ing the mandatory 6-month release date because, under the
laws controlling at the time of the inmate’s crimes, an inmate
had no right to be released on either discretionary or mandatory
parole before that 6-month release date.
(v) U.S. Supreme Court Has Indicated That
Whether Change to Original Punishment
Based on New Conduct Implicates Ex
Post Facto Must Be Determined From
Notice at Time of Original Crimes,
Not at Time of New Conduct
Cases finding no ex post facto violation upon such conse-
quences for failing to provide a DNA sample sometimes play
lipservice to the notion that the punishment was for the refusal
to provide a sample, which occurred after the amended law or
regulation, and was not an increase in the quantum of punish-
ment for the original crime occurring before the amended law
or regulation. But we can find no case wherein a court has
concluded that the new law was constitutionally applied to the
convicted person when the consequences were an increase in
the time incarcerated and the convicted person would not have
contemplated the underlying change in the law or regulation at
the time of the crime leading to that incarceration.
Most important, the U.S. Supreme Court has repeatedly
rejected the notion that a law affecting the period of incarcera-
tion for the original crime, but only if the inmate commits or
fails to commit certain actions after passage of the new law,
somehow does not relate to the original crime for purposes of
an ex post facto analysis.
As 	already 	discussed, 	in 	Weaver 	v. 	Graham, 	the 	U.S.
Supreme Court rejected the idea that changes to the good time
system, because they applied only to the accumulation of good
time after passage of the changes, were prospective and not
retrospective.83 The Court explained that the point of time to
83 Weaver v. Graham, supra note 17.

426 	289 NEBRASKA REPORTS
be focused on was when the crimes were committed that led
to the incarceration that is being affected by the good time.84
In Scafati v. Greenfield,85 the U.S. Supreme Court summar-
ily affirmed a decision by the lower court that a law passed
after the inmate’s crimes but before his release on parole,
making a prisoner good time ineligible for 6 months if the
prisoner committed a violation of parole, was ex post facto.
In Greenfield v. Scafati,86 the lower court explained that while
under the law at the time of the prisoner’s crime, the inmate
could become good time ineligible through misbehavior dur-
ing confinement, there was no prior provision for forfeiture
of future good time eligibility through misbehavior while
on parole. The court found that insofar as the new law thus
increased the scope of opportunities to forfeit good time
eligibility, it was ex post facto. The court observed that the
availability of good conduct deductions was considered part
of the sentence for the original crime. Likewise, although a
prisoner’s entitlement to parole lies in the discretion of the
parole board, it does “not follow because a prisoner might
not receive parole that it would not be an unlawful ex post
facto burden to deprive him altogether of the right to be found
qualified,” and “hence earn, parole.”87
Subsequently, 	in 	Johnson 	v. 	United 	States,88 	the 	U.S.
Supreme Court reaffirmed, in dicta, its decision in Scafati v.
Greenfield. In Johnson v. United States, the Court determined
that because the district court always had the same powers
under preexisting law, there was no ex post facto question con-
cerning a statute that allowed for revocation of the supervised
release of the original offense, including no credit for time
served under such supervised release, upon violation of the
conditions of release. Nevertheless, the Court went out of its
84 Id.
85 Scafati v. Greenfield, 390 U.S. 713, 88 S. Ct. 1409, 20 L. Ed. 2d 250
(1968).
86 Greenfield v. Scafati, 277 F. Supp. 644 (D.C. Mass. 1967).
87 Id. at 646.
88 Johnson v. United States, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 2d
727 (2000).

SHEPARD v. HOUSTON 	427
Cite as 289 Neb. 399
way to reject the reasoning of the lower court that there was no
ex post facto violation, because the law imposed a punishment
for the new offense of violating the supervised release condi-
tions and did not increase the quantum of punishment for the
original offense.
The Court said that “[w]hile this understanding of revoca-
tion of supervised release has some intuitive appeal, [such
understanding raises] serious constitutional questions . . . .”89
First, “the violative conduct need not be criminal and need
only be found by a judge under a preponderance of the evi-
dence standard, not by a jury beyond a reasonable doubt.”90
Second, “[w]here the acts of violation are criminal in their
own right, they may be the basis for separate prosecution,
which would raise an issue of double jeopardy if the revoca-
tion of supervised release were also punishment for the same
offense.”91 The Court concluded that “[t]reating postrevocation
sanction as part of the penalty for the initial offense . . . avoids
these difficulties.”92 The Court further observed that treating
such sanctions as part of the penalty for the initial offense
is “all but entailed by our summary affirmance of Greenfield
v. Scafati.”93
“We therefore attribute postrevocation penalties to the origi-
nal conviction,”94 said the Court. The Court explained:
Since postrevocation penalties relate to the original
offense, to sentence [the defendant] to a further term of
supervised release [under the law enacted after the origi-
nal crimes but before the conduct on supervised release]
would be to apply this [law] retroactively (and to raise the
remaining ex post facto question, whether that application
makes him worse off).95
89 Id., 529 U.S. at 700.
90 Id.
91 Id.
92 Id.
93 Id., 529 U.S. at 701.
94 Id.
95 Id.

428 	289 NEBRASKA REPORTS
(vi) § 29-4106(2) and A.R. 116.04 Are Ex Post
Facto to Extent They Provide for Forfeiture
of Good Time for Refusing to
Submit DNA Sample
Cases such as Weaver v. Graham, Scafati v. Greenfield, and
Johnson v. United States make clear that we cannot accept the
State’s argument that the penalties for Shepard’s refusal to pro-
vide a DNA sample relate to the prospective act of refusal and
not to the original crimes for which Shepard was incarcerated.
The analysis is as simple as observing that § 29-4106(2) affects
changes to Shepard’s period of incarceration for the original
crimes committed before its enactment. Section 29-4106(2)
does not set forth a separate crime with a separate punishment.
We are not presented with the question of punishment for the
refusal to submit a DNA sample as a separate crime. Section
29-4106(2) as applied to Shepard was retrospective because
it changed the period of incarceration for a crime committed
before its enactment.
We 	further 	conclude 	that 	Shepard 	did 	not 	have 	fair
notice of the changes to the good time scheme mandated by
§ 29-4106(2). Section 29-4106(2) did not make changes in the
kind of discretionary disciplinary measures discussed in cases
such as California Dept. of Corrections v. Morales or Ewell
v. Murray. Nor did § 29-4106(2) merely change or elaborate
upon the category of disciplinary measures considered to be
gross or serious misconduct.
At the time of Shepard’s crimes, he expected that his man-
datory discharge date would be calculated based on a manda-
tory scheme of good time accumulation. He further expected
that the only possible forfeiture of this good time would be in
finite amounts upon the discretion of the prison officials, and
only upon gross or serious misconduct. Looking at the well-
defined parameters of the mandatory good time scheme in
effect at the time of Shepard’s crimes with a limited scope of
forfeiture, we find he did not have fair notice that the scheme
would change to mandating automatic forfeiture of all past
and future good time upon refusal to submit a DNA sample,
thereby entailing a much larger amount of forfeiture than
previously possible, for an act that was not gross or serious

SHEPARD v. HOUSTON 	429
Cite as 289 Neb. 399
misconduct, and outside the traditional discretionary, discipli-
nary process.
[13] Finally, we conclude that § 29-4106(2), in mandating
forfeiture of all good time and thereby increasing the period of
Shepard’s incarceration, is punitive. While the requirement of
providing a DNA sample is not itself punitive, the provision
of § 29-4106(2) that increases the period of incarceration by
mandating recalculation of the release date to the maximum
term of confinement clearly is. This is not meaningfully dif-
ferent from cases such as California Dept. of Corrections v.
Morales,96 State v. Henry County Dist. Ct.,97 Jones v. Murray,98
Scafati v. Greenfield,99 and Johnson v. United States.100 Those
cases illustrate that it does not matter if the new requirement
is especially onerous or could be, in itself, considered “civil.”
The new requirement considered in State v. Henry County
Dist. Ct., that the inmate participate in sex offender treatment,
although not in itself onerous or even punitive, was held to be
an ex post facto law when the consequence for the failure to
participate in the treatment was removal from good time eligi-
bility. The new requirement considered in Weaver v. Graham,
that the inmate demonstrate meritorious behavior, might in
itself be considered civil, but the court held that when such
meritorious behavior was not a requirement for good time
eligibility before, the law adding that requirement was ex
post facto.
Failure to satisfy the new requirement of providing a DNA
sample results in an increased period of incarceration. And
an increased period of incarceration is punitive. Due to the
expanded scope of good time forfeiture and the imminent
removal of his good time, Shepard is “worse off” than he was
before the passage of § 29-4106(2).101
96 California Dept. of Corrections v. Morales, supra note 18.
97 State v. Henry County Dist. Ct., supra note 66.
98 Jones v. Murray, supra note 58.
99 Scafati v. Greenfield, supra note 85.
100 Johnson v. United States, supra note 88.
101 See id.

430 	289 NEBRASKA REPORTS
In conclusion, we agree with the district court that inso-
much as § 29-4106(2) forfeits Shepard’s past and future good
time and recalculates his parole eligibility and mandatory
discharge dates without regard to any good time, it violates
the constitutional prohibitions against ex post facto laws.
Shepard, at the time of his crimes, expected to automati-
cally incur good time simply through good conduct, and he
expected to have his mandatory discharge date calculated upon
his maximum sentence minus good time. Section 29-4106(2),
by allowing for forfeiture of more good time than could have
been forfeited before and by allowing for forfeiture based on
conduct that is something less than flagrant and serious mis-
conduct—indeed, conduct not even contemplated at the time
of Shepard’s crimes—substantially altered the punitive conse-
quences attached to his crimes.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
affirmed.
in re intereSt of nathaniel m., a child
under 18 yearS of aGe.
nebraSka department of health and human ServiceS,
appellant, v. State of nebraSka and
nathaniel m., appelleeS.
855 N.W.2d 580
Filed November 7, 2014. 	Nos. S-13-1066 through S-13-1068.
1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a jus-
ticiability doctrine that operates to prevent courts from exercising jurisdiction,
an appellate court reviews mootness determinations under the same standard of
review as other jurisdictional questions.
2. ____: ____: ____. When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires an appellate court to
reach a conclusion independent of the decisions made by the lower courts.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.