Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXiW3
September 2, 1988
Mr. Henry B. Keene Op.inion No. JM-950
Chairman
Board of Pardons and Re: Constitutionality of section
Paroles 27 of article 42.18 of the Texas
P. 0. Box 13401 Code of Criminal Procedure re-
Austin, Texas 78711 garding contracting for parole
services, and related questions
(RQ-1477)
Dear Mr. Keene:
The questions you ask involve the constitutionality
of section 27 of article 42.18 of the Code of Criminal
Procedure. Section 27 of article 42.18 provides:
(a) The Board of Pardons and Paroles
shall reouest nronosals and may award
contracts to district probation offices to
provide, parole services to persons released
to the supervision of the board. The board
may award a contract under this section if
the board determines that:
(1) the district probation office pro-
posing to enter into the contract can provide
qualified officers, types and levels of
supervision, and a reporting system that are
acceptable to the department: and
(2) the services can be provided at a
cost that is not less than 10 percent lower
than the cost to the board of providing the
same services.
(b) A contract entered into under this
section must contain:
(1) a requirement that the district
probation office provide qualified officers,
types and levels of supervision, and
reporting system that are acceptable to th:
board: and
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Mr Henry B. Keene - Page 2 (JM-950)
(2) a provision authorizing the'board to
monitor the performance of the district
probation office to determine if the office
is in compliance with the contract.
(c) The board shall specifically request
the district probation office serving Tarrant
County and the district probation office
serving Potter County to enter into a con-
tract under this section. If a district
probation office submits a proposal under
this subsection that is acceptable to the
board under the standards, terms, and condi-
tions of this section, the board shall award
the office a contract with a duration of two
years. (Emphasis added.)
You ask the following questions:
1. Is Vernon's Ann. C.C.P. Article 42.18,
Section 27 unconstitutional because it vio-
lates the separation of powers doctrine to
require the Board of Pardons and Paroles to
contract with district probation offices,
specifically the district probation offices
of Tarrant County and Potter County, to
provide parole services to persons released
to the supervision of the Board when a
'proposal' is acceptable to the Board under
the standards, terms and conditions of
Vernon's Ann. C.C.P. Article 42.18, Section
27?
2. Does Vernon's Ann. C.C.P. Article
42.18, Section 27 violate the separation of
powers doctrine (Vernon's Ann. Tex. Const.
Article XI, 5 l), by authorizing the judicial
branch to usurp or otherwise circumvent the
exclusive authority to determine parole
granted to the Board of Pardons and Paroles
by Vernon's Ann. Tex. Const. Article IV, 4 11
land Vernon's Ann. C.C.P. Article 42.18 since
probation officers will be required to take
the following actions as a part of their
duties in supervising persons under the
Board's jurisdiction: (1) :.nvestigate/report
violations of the conditions of parole, (2)
give recommendations regarding the issuance
of pre-revocation warrants or to continue on
parole with or without modifications and/or
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Mr Henry B. Keene - Page 3 (JM-950)
the imposition of sanctions: (3) provide
proof at an administrative release revocation
hearing that a parolee violated the condi-
tions of parole as alleged; (4) give recom-
mendations as to what final action should be
taken by the Board (either to revoke parole
or continue under supervision) and (5)
recommend the withdrawal of a pre-revocation
warrant at any stage of the revocation
process prior to the hearing?
(3) Does Vernon's Ann. C.C.P. Article
42.18, Section 27 violate the separation of
powers doctrine (Vernon's Ann. Tex. Const.
Article XI, § l), by authorizing the judicial
branch to usurp or otherwise circumvent the
exclusive authority of the Board of Pardons
and Paroles to recommend pardons to the
Governor under Vernon's Ann. Tex. Const.
Article IV, § 11 and Vernon's Ann. C.C.P.
Article 48.01 since Probation officers will
be required as a part of their duties in
supervising persons under the Board's juris-
diction to investigate full pardon applica-
tions and to make a recommendation to the
Board of Pardons and Paroles as to whether a
full pardon should be granted in a particular
case or not?
Without further analysis, we will assume that you are
correct in your conclusion that a district probation office
is a part of the judicial branch. All of your questions
involve the separation of powers doctrine set forth in
section I of article II of the Texas Constitution which
provides:
The powers of the Government of the State
of Texas shall be divided into three distinct
departments, each of which shall be confided
to a separate body of magistracy, to wit:
Those which are Legislative to one, those
which are Executive to another, and those
which are Judicial to another: and no person,
or collection of persons, being of one of
these departments, shall exercise any power
properly attached to either of the others,
except in the instances herein expressly
permitted.
P. 4797
Mr Henry B. Keene - Page 4 (JM-950)
In Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim.
APP. 1987) the court addressed the separation of powers
doctrine. In Meshell the court stated:
Article II, 0 1, in a single, tersely
phrased paragraph, provides that the consti-
tutional division of the government into
three departments (Legislative, Executive and
Judicial) shall remain intact, 'except in the
instances herein expressly permitted.' This
separation of the powers of government en-
sures 'that a power which has been granted to
one department of government may be exercised
only by that branch to the exclusion of
others;' Ex carte Giles, 502 S.W.2d 774, 780
(Tex. Cr. App. 197&), citing Snodsrass v.
State, 67 Tex. Crim. 615, 150 S.W. 162 (1912).
The separation of powers doctrine therefore
requires that 'any attempt by one department
of government to interfere with the powers of
another is null and void.' Giles, surea,
citing Ex carte Rice 72 Tex.&.ti. 587, 162
S.W. 891 (1914).----I
-,
Although one department has occasionally
exercised a power that would otherwise seem
to fit within the power of another depart-
ment, our courts have only approved those
actions when authorized by an express
provision of the Constitution. See, mt
Government Services I Underwriters
Jones, 368 S.W.2d 560 ;:;x. 1963) (Legis
ture could provide for legislative continu-
ance under express power to establish rules
of court in Article V, § 25, of the Texas
Constitution); Ex carte Younablood, 251 S.W.
509 (Tex.Cr.App. 1923) (Legislature could not
delegate contempt power to committee under
limited power of Article III, § 15, of the
Texas Constitution).
Section XI of article IV of the T:-:xasConstitution as
amended at the general election Or, November 8, 1983,
provides:
1. The Leoislature shall bv law establish
a Board of Pardons and Paroles and shall
mre it to keen record of its actions and
the reasons for its actions. The Leaislature
shall have authority to enact narole laws.
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Mr Henry B. Keene - Page 5 (JM-950)
In all criminal cases, except treason and
impeachment, the Governor shall have power,
after conviction, on the written signed
recommendation and advice of the Board of
Pardons and Paroles, . or a majority thereof,
to grant reprieves and commutations of
punishment and pardons: and under such rules
as the Legislature may prescribe, and upon
the written recommendation and advice of a
majority of the Board of Pardons and Paroles,
he shall have the power to remit fines and
forfeitures~. The Governor shall [have] the
power to grant one reprieve in any capital
case for a period not to exceed thirty (30)
days; and he shall have power to revoke
conditional pardons. With the advice and
consent of the Legislature, he may grant
reprieves, commutations of punishment and
pardons in cases of treason. (Emphasis
added.)
Following the 1983 amendment, the legislature enacted
Senate Bill No. 589 (article 42.18 of the Code of Criminal
Procedure), Acts 1985, 69th Leg., ch. 427, § 2, effective
September 1, 1985, designating the Board of Pardons and
Paroles as the agency to handle matters of parole and
mandatory supervision. Code Crim. Proc. art. 42.18, § 1.
Section 2 of article 42.18 defines "parole" and
"mandatory supervision" as follows:
'Parole' the release of an
eli:ible prisonerm```` the physical custody
of the Texas Department of Corrections to
serve the remainder of his sentence under the
supervision and control of the Board of
Pardons and Paroles. Parole shall not be
construed to mean a commutation of sentence
or anv other form of executive clemencv.
b. 'Mandatory supervision' means the
release of an eligible prisoner from the
physical custody of the Texas Department of
Corrections but not on parole, to serve the
remainder of his sentence under the super-
vision and control of the Board of Pardons
and Paroles. Mandatorv sunervision mav not
be construed as a commutation of sentence
or v th r f rm of executive clemencv.
(ErniEasPs zddez.) .
p. 4799
Mr Henry 5. Keene - Page 6 (JM-950)
'A parole is distinguished from a pardon in that a
parole does not end a prisoner's sentence but simply pro-
vides a different manner of serving the sentence than by
confinement in a prison, whereas a pardon exempts the
prisoner from punishment. 44 Tex. Jur.ld Pardon. ReDrieve,
Commutation 5 2.
In Rose v. State, 752 S.W.2d 529 (Tex. Crim. 1987), the
court held that the instruction on the law of parole in the
charge of the court to the jury given pursuant to section
4(a) of article 37.07 of the Code of Criminal Procedure is
unconstitutional as violative of the separation of powers
doctrine.
In reaching this conclusion, the court had occasion to
review the effect of the 1983 amendment to section 11 of
article IV as it related to the statute in question. In
Rose the court stated:
Now we must 'first determine whether con-
stitutional principles barring jurors from
considering parole laws have survived the
revision of Article IV, § 11, effective when
the voters approved the proposition submitted
by S.J.R. No. 13 in 1983. 4 Vernon's Texas
Session Law Service 1983, at A-158. As
revised, 5 11 reads in pertinent part:
'Section 11. The Legislature shall by
law establish a Board of Pardons and
Paroles and shall require it to keep
record of its actions and the reasons for
its actions. The Legislature shall have
authority to enact parole laws.
. . . .
The second sentence in the first paragraph
of revised .Q 11 is derived from former 5 11
similarly providing that the legislature
'shall have authority. to enact parole laws,'
and we find no indi.:ation that the revision
is intended to provide a broader scope of
legislative authority in regard to parole
laws than already possessed. Therefore, con-
trary to the view of [the] court of appeals,
that the Legislature retains the authority
granted in 1936 to enact parole laws is of
little importance. What is crucial is the
role of the Board, and to that we now turn.
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Mr Henry B. Keene - Page 7 (JM-950)
h
Clemency power is inherent in sovereignty,
and may be lodged in whole or in part
wherever the people determine. EX Dart
502 S.W.Zd 774, 780 (Tex.Cr.Appe
%' . S i h v. Blackwell , 500 S.W.2d 97, 100
(Tex.&.ipE. 1973): E D ' r 124
Tex. Crim. 592, 64 S.W.2: 77i:;80";:9:;); Ex
parte Muncv 72 Tex. Crim. 541, 163 S.W. 29;
44 (1914); $7 Tex.Jur.3d 263-264, 'Criminal
Law’ 5 4381: 44 Tex.Jur.2d 5-6 'Pardon,
Reprieve, and Commutation' S 2; Interpretive
Commentary following Article IV, 5 11.
In the second paragraph of § 11, as
revised, the Governor retains power to grant
.and to revoke a conditional pardon, as well
as all other clemency powers save one
formerly in the Governor. The effect of
revised F, 11 is to remove parole eo nomine
from the clemency power of the Governor and
to vest that clemency power to grant and to
revoke paroles in the Board. In the sense
that the Governor, as chief executive, is no
longer empowered to grant it, parole may 'not
be construed to be any form of 'executive
clemency,' Article 42.18, § 2a. But parole
is an act of grace. Ex carte Lefors, 165
Tex. Crim. 5, 303 S.W.2d 394, 397 (1957);
united States v. Chasra 669 F.2d 241, 264
(CA5 1982). So lona a; it exists and is
utilized -as a tool of punishment and
rehabilitation, jurisdiction, power and
authority over parole must be exercised by
some officer or agency of government. See
and comnare Ex carte Grles, m, at 780 and
Smith v. Blackwell sunra, at 101. The
people have decided'in favor of the Board
rather than the Governor, and the Legislature
has effectuated that decision in Article
42.18, V.A.C.C.P. Thus, parole is an act of
clemency within the 'exclusive' jurisdiction,
power and authority of the board. Id., 0 1.
The caption of S.J.R. No. 13 characterizes
the Board to be established as \a statutory
agency,' meaning no more than it is a crea-
ture of statute. However, since in 1936 the
Board was elevated to constitutional status
in the Executive Department and the first
sentence of the first paragraph in 5 11
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Mr Henry B. Keene - Page 8 (JM-950)
mandates the Legislature to establish a
Board, we find that, whatever its characteri-
zation, the Board remains where it has always
been -- in the Executive Department. See
; s, ' Conti
Distillino Sales Co., 199 S.W.2d 1009, loI:-
1013 (Tex. Civ. App. -- Dallas 1947), writ
refused n.r.e., 203 S.W.2d 288, 289, appeal
dismissed, 332 U.S. 747, 68 S. Ct. 26, 92
L. Ed. 335 (1947). Moreover, the legislation
implementing the constitutional foundation
for the Board expressly provides that 'it is
subject to the Texas Sunset Act, but it is
not abolished under that Act.' Article
42.12, § 12a, V.A.C.C.P., see now Article
42.18, M. See Texas Sunset Act, Government
Code, § 325.014. Compare similar treatment
of Secretary of State in Article 4330a,
V.A.C.S. (1987 Pocket Part).
Therefore, we conclude that since the
Board of Pardons and Paroles is within and
part of the Executive Department as contem-
plated by Article II, 5 1, 'the decision' to
grant parole, if and when made, is beyond the
province of the [Judicial, Department] . . .
and is exclusively a matter within the
[Executive Department], under proper
regulation by the [Legislative Department].
Article IV, Section 11.' Beredia v. State,
and Sanders v. State both.sunra. Accord-
ingly, 'any attempt 'by one department of
government to interfere with the powers of
another is null and void.' )& narte Giles,
su?xar at 780; State ex rel. Smith v. Black-
well. sunra, at 101.
The remaining question is whether the leq-
islative mandate in Article 37.07, § 4(a),
w, that the courts 'shall charge the jury
in writing' the content of instruction given
by the trial court in this cause, offends the
separation of powers doctrine prescribed in
Article II, 0 1. Finding the statute is an
attempt by one department of government to
direct another department to interfere with
powers of yet a third department of qovern-
ment, we hold that Article 37.07, 5 4(a) is
unconstitutional.
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Mr Henry B. Keene - Page 9 (JM-950)
. . . .
Both the statute and the instruction begin
with a direct albeit erroneous statement,
a:
'Under the law -applicable to this case,
the defendant, if sentenced to a term of
imprisonment, may earn time off the
sentence imDosed through the award of good
conduct time.l
The remainder of the first paragraph in both
statute and instruction informs the jury
generally about factors relevant to awarding
good time and warranting taking it away.
The second paragraph in each adds that
length of imprisonment might be reduced by an
award of parole.
The third paragraph dictated by the
statute reveals to the jury as 'the law
applicable in this case,' the exact formula
to determine when this appellant will become
eligible for parole -- 'the actual time
served equals one-third of the sentence
imposed or 20 years, whichever is less,
without consideration of any good conduct
time he may earn' -- and gives a simple
example: it points out that eligibility is
not guarantee of parole.
The jury is next informed that one cannot
accurately predict 'how the parole law and
good conduct time might be applied to this
defendant,r because that depends on decisions
made by 'prison and parole authorities.'
At this point, however, in the fifth para-
graph of both the jury is instructed: 'YOU
mav consider the existence of the parole law
and good conduct time.' That is -to say, when
it comes to assess punishment the jury may
deliberate on the content of what has been
stated in the precedinq~ four paragraphs in
making a decision as to the number of years
it will assess as punishment.
p. 4803
Mr Henry B. Keene - Page 10 (JM-950)
'The evil to be avoided is the considera-
tion by the jury of parole in assessing pun-
ishment.' Clark v. State 643 S.W.2d 723
725 (Tex.Cr.App. 1982). kather than avoid
that evil the instruction mandated by the
statute directly instructs the jury that in
assessing punishment it may consider aspects
of parole law contained in the instruction.
It is of no constitutional consequence
that thereafter excluded from consideration
are 'the extent to which good conduct time
may be applied to this particular defendant'
by the authorities. Jurors have already been
instructed that thev may consider the stated
explanation of parole law and good conduct
time, yet the Court has consistently held the
parole law is not for the jury's considera-
tion. - ante at 2-4.
See -,
The legislative mandate in Article 37.07,
§ 4(a), suvra, is an attempt by the Legisla-
tive Department to direct the Judicial
Department to interfere with exercise of
powers of the Board of Pardons in the
Executive Department and, as such it offends
the separation of powers doctrine in Article
II, 5 1. Accordingly we hold that Article
37.07, 5 4(a) and the instruction required
by it are unconstitutional. .(Footnotes in
opinion are omitted.)
Id. at 532-535.
In your first question, you ask whether section 27 of
article 42.18 is unconstitutional "because it violates the
separation of powers doctrine to require the Board of
Pardons and Paroles to contract with district probation
offices." We do not construe section 27 to require that the
board enter into a contract with district probation offices.
Subsection (a) of section 27 states the board "shall request
proposals and may award contracts" if the board determines
that certain conditions exist.' Any contra'ct must provide
for qualified officers and 'Ia reporting system that are
acceptable to the board." In addition the contract must
authorize the board to monitor the performance of the
district probation office to determine if there is com-
pliance with the contract. Subsection (c) further provides
that the proposal for contract must be acceptable to the
board under the conditions of this section. Unlike the
p. 4804
Mr Henry B. Keene - Page 11 (JM-950)
c..
parole law instruction to the jury which allowed the
judicial branch to effectively apply the parole law in
assessing punishment, section 27 should not be construed as
an attempt on the part of the Legislature to divest the
Board of Pardons and Paroles of its authority to act on
paroles. Any contract entered into with a probation office
would have to be acceptable to the board. The probation
offices and their reporting, systems would have to be
acceptable to the board and the board would have authority
to monitor the performancs of the district probation
offices. The decision making process in determining what
action is to be taken on a parole remains with the board.
The separation of powers doctrine would have come into play
if the legislature had attempted to delegate to the judicial
branch the authority to apply the parole laws, a function
given to the Board of Pardons and Paroles by the constitu-
tion. The legislature has no power to delegate a function
"which it does not itself possess." Sun Oil v. Potter, 182
S.W.2d 923 (Tex. Civ. App. - Austin 1944, reversed on other
grounds, 189 S.W.2d 482). We do not construe section 27 of
article 42.18 to permit the judicial branch to encroach on
the authority of the Board of Pardons and Paroles in acting
on paroles.
In your second question, you ask whether the per-
formance of certain duties by district probation offices
under such a contract would violate the separation of powers
doctrine. You advise that the duties of investigations and
recommendations regarding paroles are the duties presently
assigned to field supervising officers (who work for the
board) as promulgated by the board and contained in its
Field Services Manual. Rather than an attempt by the
Legislative Department to interfere with the powers of the
Board of Pardons and Paroles in the parole process, the
duties you enumerate are promulgated by the board and the
offices assigned to perform such functions are monitored
by the board. No violation of the separation of powers
doctrine is shown by virtue of the board requiring a
district probation office with whom it may have a contract
to perform certain duties prescribed by the board relative
to the parole process.
In your third question, you ask whether section 27 of
article 42.18 authorizes the judicial branch (through its
probation officers) to usurp the exclusive authority~of .the
Board of Pardons and Paroles to recommend pardons to -the
governor under section 11 of article IV of the Texas
Constitution. While the amendment to section 11 of article
IV removed the governor from the parole process it did not
divest his authority to grant reprieves and commutation of
P. 4805
Mr Henry B. Keene - Page 12 (JM-950)
punishment and pardons. Nor did the amendment alter the
board's constitutional authority in the pardon process since
the governor may act only "on the written recommendation and
advice of the Board of Pardons and Paroles."
Section 27 of article 42.18 provides the Board of
Pardons and Paroles "may award contracts to a district
probation office to provide parole services." Section 2 of
article 42.18 expressly provides that "Parole shall not be
construed as commutation of sentence or any other form of
executive clemency." We do not construe section 27 of
article 42.18 to authorize the board to enter into contracts
with probation offices to perform any function relating to
pardons or any form of executive clemency. The requirement
that a probation office make a recommendation to the Board
of Pardons and Paroles regarding pardons appears to be a
rule promulgated by the board rather than a statutory duty
imposed by the legislature. Section 27 of article 42.18
does not impinge on the constitutional function of the Board
of Pardons and Paroles to recommend or advise the governor
relative .to "reprieves and commutation of punishment and
pardons."
SUMMARY
Section 27 of article 42.18 does not
violate.the separation of powers doctrine of
the Texas Constitution by ~providinq that
**[t]he Board of Pardons and Paroles shall
request proposals and may award contracts to
district probation offices to provide parole
services -- if the board determines" that
certain conditions exist. No violation of
the separation of powers doctrine is shown by
virtue of the board requiring a district
probation office with whom it has a contract
to perform certain duties prescribed by the
board relative to the parole process. Section
27 of article 42.18 does not impinge on the
constitutional authority of. the Board of
Pardons and Paroles to recommend or advise
the governor relative to "reprieves and com-
mutation of punishment and pardons."
JIM MATTOX
Attorney General of Texas
P. 4806
Mr Henry B. Keene - Page 13 (JM-950)
NARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General .
p. 4807