Untitled Texas Attorney General Opinion ( 1974 )

May 6. 1974
The Honorable William H. Skelton Opinion No. H- 295
Chairman
Board of Pardons and Paroles Re: The authority of the
Room 501 John H. Reagan Building Board of Pardons and
Austin, Texas 78701 Paroles in regard to
prisoners whose con-
victions ore still on
Dear Mr. Skelton: appeal
i
You have asked our opinion on three questions relating to the autho-
rity of the Board of Pardons and Paroles to recommend reprieves and
paroles of persons incarcerated in a, facility of the Texas Department of
Corrections while their cases are being appealed. Your first two questions
are:
1. “Does the Board of Pardons and Paroles have
the authority to recommend tc the Goyvernor an Indefinite
Medical Reprieve or Emergency Reprieve for an inmate
confined in the Texas Department of Corrections if the
inmate has a conviction on appeal?”
~2. “Does the Board of Pardons and Paroles have
the authority to consider the case of an inmate confined
in the Texas Department of Corrections for parole and
recommend parole to the Governor when the inmate has
a conviction on appeal? ”
Your inquiries are necessitated by recent amendments to Articles
42.03 and 42.09, Vernon’s Texas Code of Criminal Procedure, which permit
the transfer of persons to the Texas Department of Corrections while their
appeals are pending.
p. 1373
The Honorable William H. Skelton, page 2 (H-295)
The primary basis for the authority of the Board of Pardons and
Paroles is found in Article 4, $11, of the Texas Constitution which provides
in part:
“In all criminal casts, 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 commuta-
tions of punishment and pardons. . . .‘I
In Texas a felony conviction ordinarily is not considered final until
after it has been affirmed by the Court of Criminal Appeals, Pruett v. Texas,
470 F. 2d ,ll82 (5th Cir. 1973, en bane), aff’d mem. u.s 38 L. Ed.
2d 39 (Oct. 9, 1973); however, the term “after conviction” asused in relation
to reprieves, pardons and commutations has been held to mean after a verdict
of guilty. Whan v. State, 485 S. W. 2d 275 (Tex. Crim. 1972); Goss v. State,
298 S. W. 585 (Tex. Crim. 1927); Snodgrass v. State, 150 S. W. 162 (Tex. Crim.
1912). Under this reasoning it has been judicially determined that commuta-
tions may be granted before the completion of the appellate process. Stanley
v. State, 490 S.W. 2d 828 (Tex. Crim. 1973); Cherry v. State, 488 S. W. 2d
744 (Tex. Grim. 1973), cert. denied, 411 U.S. 909 (1973); Hall v. State, 488
S. W. 2d 94 (Tex. Crim. 1973); Whan v. State, %pra. See, Snodgrass v.State,
supra, and Article 42.07, Vernon’s Texas Code of Criminal Procedure, for
language strongly indicating that the same rule applies to pardons. We believe
the same conclusion must be reached in respect to reprieves. Paroles are con-
ditional pardons, Ex parte Lefors, 303 S. W. 2d 394 (Tex. Crim. 1957). and
would be governed by the same rule controlling pardons.
Therefore, in answer to your first and second questions, it is our opinion
that the Board of Pardons and Paroles has the authority to recommend an inde-
finite medical reprieve, an emergency reprieve or a parole for a prisoner whose
case is still being appealed. Your third question is conditioned on a negative
answer to your second question; and therefore, it is unnecessary for us to con-
sider it.
p. 1374
. I
The Honorable William H. Skelton, page 3 (H-295)
SUMMARY
The Board of Pardons and Paroles has the authority
to recommend a prisoner for an indefinite medical reprieve,
an emergency reprieve .or a parole even though the prison-
er’s conviction has not yet been reviewed by the Court of
Criminal Appeals.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1375