Untitled Texas Attorney General Opinion ( 1971 )

Honorable A. C. Turner, Chairman
Board of Pardons and Paroles
John H. Reagan Building
Austin, Texas 78701
Opinion No. M-833
Re: Does the condition attached
to commutation "that subject
never become eligible for
clemency of any type at any
Dear Mr. Turner: future date" preclude parole?
you have recently requested an opinion of the following
facts:
"On the 9th Day of January, A.D., 1953,
Governor Allan Shivers commuted the sentence
of Robert Ernest Miers, Execution #366,
from a death sentence to life imprisonment
in the Texas Department of Corrections 'con-
ditioned that subject shall never become eli-
gible for clemency of any type at any future
date'.
"This Board is considering parole for this
subject, but we feel we should obtain an of-
ficial opinion of the Attorney General that
will answer the following question:
"Does the condition attached to commuta-
tion 'that subject shall never become eligible
for clemency of any type at any future date'
preclude parole under the provisions of Article
781B, Code of Criminal Procedure."
Article 781b is now 42.12 of Vernon's Code of Criminal
Procedure, under which executive clemency is now granted.
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Honorable A. C. Turner, Page 2 (M-833)
Since the year 1936, under the provisions of the Consti-
tution of Texas, Article IV., Section 11, the power to grant
commutation of sentence and pardons is vested in the Governor
to be granted 'Ionthe written signed recommendation and advice
of the Board of Pardons and Paroles, . . .II
The photostatic copy of the Governor's proclamation at-
tached to your request for an opinion reflects that on January
9, 1953, the Board of Pardons and Paroles recommended that
Robert Ernest Miers be granted the commutation of his death
sentence to life imprisonment in the Texas penitentiary.
Commutation has been defined to mean "the change of the
punishment assessed to a less severe one. It differs from a
pardon in that it may be imposed without the consent of the
convict or against his will." See Ex Parte Lefors, 303 S.W.2d
394 (Tex.Crim. 1957).
The commutation recommended by the Board of Pardons and
Paroles was a form of clemency greater than the conditional
commutation of sentence granted by the Governor. Commutation
of the death sentence to life imprisonment alone would have
made Miers eligible for parole after serving twenty (20) cal-
endar years. Art. 42.12, Sec. 15, V.C.C.P. The commutation
that was granted by Governor Allan Shivers was that Miers'
death sentence would be commuted to life imprisonment condi-
tioned that he never become eligible 'for clemency of any type
at any future date. The Constitution of Texas, Article IV.,
Section 11, relating to the recommendations and advice of the
Board of Pardons and Paroles to the Governor should not be con-
fused with the right of the Governor to grant under the authority
given him by the Constitution, commutations, paroles, pardons,
or any other form of clemency that he deems advisable; for there
is a marked legal distinction between the power of the Board to
recommend or advise the Governor and the Governor's power to fol-
low said recommendation. Art. 42.12, Sec. 33, V.C.C.P., provides
as follows: "The provisions of this Act shall not be construed
to prevent or limit the exercise by the Governor of powers of
executive clemency vested in him by the Constitution of this
State."
In EX Parte Lefors, supra, the Court had before it a question
arising m'x construction of a proclamation wherein the Board
of Pardons and Paroles had recommended to the GGovernor the
commutation of a ten year sentence to time served. The Governor,
however, by virtue of the authority vested in him under the
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Honorable A. C. Turner, Page 3 (M-833)
Constitution granted a conditional pardon conditioned upon
several conditions set forth in the proclamation. Lefors
was later arrested for having violated one of the conditions
of his parole. On haheas corpus to the Court of Criminal
Appeals, Lefors contended that he was entitled to discharge
from custody because the Governor had not followed the re-
commendations of the Board of Pardons and Paroles. In up-
holding the Governor's power to grant a lesser clemency than
recommended by the Board of Pardons and Paroles the Court stated
on rehearing as follows:
"The majority are committed to the rule that
the greater includes the lesser and the Governor
may grant a lesser included form of clemency than
recormnended by the Board of Pardons and Paroles
but may not constitutionally grant a greater form."
303 S.W.2d at page 400.
In Rx --
Parte Redwine, 236 S.W. 96 (Tex.Crim. 1921), the Court
of Criminal Appeals stated as follows:
"We are of the opinion that, in the exer-
cise of executive clemency to one convicted of
a felony, the Governor may impose such con-
ditions as he sees fit, and this may be done
by direct expression or by reference and im-
plication, and, as has often been said, it is
only when the conditions are illegal, immoral,
or impossible of performance that any question
concerning them can be raised in the court."
In 67 C.J.S. at page 585, we find the following:
"Under statutes so providing, the power of
prison authorities with respect to commutation
of sentence is limited merely to recommending
such action to the Governor; and the acceptance
of such recommendation as to commutation and
the amount thereof is a matter wholly within
the discretion of the Governor."
At 67 C.J.S., page 588, we also find:
"In granting a conditional commutation, the
authorized pardoning officer may impose such
conditions, restrictions, and limitations as
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Honorable A. C. Turner, Page 4 (M-833)
he may think proper, provided they are not
illegal, immoral, forbidden by law, or im-
possible of performance; and the condition
may be either precedent or subsequent."
In applying the above rule, various conditions have been
held proper. In the case of Ex Parte Daven ort 7 S.W.2d 589
(Tex.Crim. 1927), it appears Bi& a person w o was convicted
--+--I
of murder, and sentenced to imprisonment for a term of ninety-
nine years, was pardoned by the Governor on the condition that
Lzdb;lco;:ined in some state ;r private hospital for zh;egsy,
he was not so con ined the pardon could b
by the Governor. The pardon was later revoked by the Governor
on the ground that the condition had not been complied with.
The Court held that the Governor, in issuing the conditional
pardon, reserved the right to revoke it on non-compliance with
the conditions named, and was privileged to do so without judi-
cial inquiry into the breach. This condition was not unreasonable.
In Ex Parte Collie, 240 P.2d 275, cert.den. 73 S. Ct. 1145,
345 U.S. 1000 97 L.F& 1406 (1952), the Supreme Court of the
State of Caligornia had before it an ADDlication for Writ of
Habeas Corpus wherein the Petitioner (Collie) attacked the
validity of a condition imposed upon the commutation of his
death sentence>olife-i?nprisonment that he shou never be
``~?.``~eGfro;"';ol;d ,!!;; Supreme Court, speakin$lthrough Chief
"a commutation is in the nature of a
favor which may be withheld entirely or granted upon such reason-
able conditions, restrictions and limitations as the Governor may
think proper." He then went on to hold the condition was reason-
able.
In Green v. Gordon, 246 P.2d 38, cert.den. 73 S. Ct. 187,
344 U.S. 886 97L.Ed.1406 (1952), the Supreme Court of Cali-
fornia once igain had before it a mandamus action by a person
convicted of first-degree murder whose sentence of death was
commuted to life imprisonment without parole. The Court held
that the commutation of sentence was in the nature of a favor
which could withhold entirely or grant upon such reasonable
conditions, restrictions and limitations as the Governor may
think proper.
While it has been held that such a conditional commutation
of sentence as is involved in this case is valid, the terms
of the conmutation by one governor cannot prohibit his successor
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Honorable A. C. Turner, Page 5 (M-833)
from changing or modifying its provisions. As was stated in
Ex Parte Collie, supra, at page 276:
"The terms of the commutation purport to
prevent a subsequent governor from granting
petitioner permission to apply for parole,
but it is clear that one governor has no
power to prohibit his successors from chang-
ing a commutation of sentence or modifying its
provisions. It is the general rule that one
legislative body cannot limit or restrict its
own power or that of subsequent Legislatures
and that the act of one Legislature does not
bind its successors. . . A similar rule should
apply to the head of the executive branch of
state government. Accordingly, the present
commutation cannot be given effect as a re-
striction on the power of later governors to
grant further executive clemency."
In answer to your question, the conditional commutation of
sentence by Governor Allan Shivers cannot be given effect as a
restriction on the power of a later governor to grant further
executive clemency upon the written signed recommendation and
advice of the Board of Pardons and Paroles. The doctrine of
consistent interpretation of executive clemency requires that
the present governor give great weight to the reasons that com-
pelled a prior governor to act.
SUMMARY
The conditional commutation of sentence by
one governor is not binding on a later governor's
power to grant further executive clemency or
parole upon the written recommendation and ad-
vice of the Board of Pardons and Paroles under
Article 42.12, Vernon's Code of Criminal Pro-
cedure. However, the present governor, in
considering the recommendation of the Board of
Pardons and Paroles, may examine all circum-
stances relating to the prisoner's confinement
and sentence commutation. The doctrine of consis-
tent interpretation of executive clemency requires
that the present governor give great weight to the
reasons that compelled a prior governor to act.
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Honorable A. C. Turner, Page 6 (M-833)
Yours very truly,
CRAWFORD C. MARTIN
Attorney General of Texas
First Assistant
Prepared by Gilbert Pena
Assistant Attorney General
APPROVED:
OPINION CO?IMITTEE
Kerns Taylor, Chairman
W. C. Allen, Co-Chairman
Ben Harrison
Sam Jones
Jim Broadhurst
John Reese
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
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