Honorable A. C. Turner Opinion No. M-981
Chairman
Board of Pardons and Paroles Re: Authority of Board
Room 501 of Pardons and Paroles
John H. Reagan Building to conunutethe Death
Austin, Texas 78701 Sentence to a Life
Sentence upon reversal
of penalty in a case
by the United States
Supreme Court under
facts presented, and
Dear Mr. Turner: related question.
You have recently requested an opinion on the following
facts:
"This Board would like to know if it has
the authority, under the law, to commute the
DEATH sentence to a LIFE sentence in view of
the action by the United States Supreme Court
in reversing the penalty in this case. Can
this Board act in this case without the ap-
plication of the inmate for a Commutationof
Sentence?
"In view of the ruling of the United
States Suprene Court in this case, is this
innate under a DEATH sentence at this time,
and what action can this Board take under the
law?
"Is this Board required to have a hearing
in the event it has the authority to act in
this case?
"Did the defendant request a Commutation
of Sentence in his action to the Supreme Court
of the United States?'
In keeping with our policy of not giving opinions on matters
presently in litigationwe cannot answer your questions regarding
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ttonorableA. C. Turner, page 2 (M-981)
the Quintana case. However, for your guidance, we will honor
your request for advice in this general area. This advice does
not necessarily control any specific case.
Article 40.01, C.C.P., provides,
*In all criminal cases, except treason and
impeachment,the Governor shall have power,
after conviction,on the written signed recom-
mendation and advice of the Board of Pardons and
Paroles, or a majority thereof, to grant reprieves
and commutationsof punishmentsand pardons; . . .I
This Article is taken verbatim from the second paragraph of
Article IV, Section 11 of the Texas Constitution.
The power of the Governor to grant commutationsof punish-
ment after conviction,has been provided in the Constitutionof
Texas from its inception. Although Article IV, Section 11 of
the Texas Constitutionhas been amended, this basic grant of
authority remains unchanged, except it now provides that the
Governor has this power "on the written signed recommendation
a&advice of the Board of Pardons and Paroles, or a majority
thereof".
This constitutionalpower of the Board of Pardons and
Paroles and the Governor can be exercised at any time "after
conviction,*.In this context the phrase "after conviction"
means after a finding of guilty. As Stated by the Court in
Snodqrass v. State, 150 S.W. 162 (Tex.Crim.19121,
I Under the connnonlaw, a person was
said t; be'convictedof the crime when verdict
was rendered thereon adjudginghim guilty, . . ."
(at p. 172).
I . . .
* The foregoing references show that
the orkAa& meaning of the word 'conviction'is
the verdict of guilty pronouncedby a jury. . .I
(at p. 173).
I . . . Thus it is seen that the terms 'after
conviction' in our Constitutiondo not embrace the
sentence, but simply mean the determinationof
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Honorable A. C. Turner, page 3 (M-981)
quilt by the tribunal authorizedto try the issue
of quilt or innocence of a defendant,and the
person becomes subject to pardon whenever that
issue is finally determined.' (at p. 174).
This interpretationis supported by the language of
Article IV, Section llA, added to the Texas Constitutionin
1935. Section 1lA granted authority to the Courts of Texas
having original jurisdictionof criminal actions to suspend the
imposition or execution of sentences and place defendants on
probation *after conviction". In Article IV, Sections 11 and
1lA of our Constitution,the term *after conviction"means only
that the defendant must have been found guilty. The executive
power to commute attaches as soon as punishment is assessed,
without regard to whether the conviction is on appeal or has
become a "final" conviction. Davenport v. State, 78 S.W.Zd
605 (Tex.Crim.1935); Goss v. State, 298 s. . 585 (Tex.Crim.
1927); 138 ALR 1162, 1164.
Therefore, even though a death penalty convictionmay be
on appeal, the executive power to commute that death sentence
to life imprisonmentexists. Even though the United States
Supreme Court may reverse a judgment insofar as it imposes
the death penalty and remand the case back to the Texas Courts
for further proceedings in conformitywith its judgment, unless
and until the Texas Court takes final action on the case, it is
still a conviction subject to the executive power to commute.
'Commutationof sentence means the change of
the punishment assessed to a less severe one. It
differs from a pardon in that it may be imposed
without consent of the convict or against his will."
EX Parte Lefors, 303 S.W.2d (Tex.Crim.1957).
The Board of Pardons and Paroles can recommend to the
Governor that a death sentence be commuted to life imprisonment,
and the Governor, pursuant to such recommendation,can commute
the sentence without consent of the convict. Neither do we find
in our laws any requirementthat the Board of Pardons and Paroles
conduct a hearing before it recommends commutationnor before
commutation is given.
SUMMARY
--w-e--
The questions regarding a specific case
presently in litigation are unanswered. However,
the Board of Pardons and Paroles generally can
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Honorable A. C. Turner, page 4 (M-981)
recommend and the Governor, baaed on such
recoasmndation,can commute a death sentence
to life imprieonmanteven though the conviction
is on appeal and has not been finally determined
by the Texas Courts. The Board and Governor
may do the sama even though the United States
Supreme Court may reverse a judqmant insofar as
it imposes the death penalty and remands the
case to the Texas Court for further proceedings
in conformitywith its judgment,so long as the
Texas Court has taken no final action in the case.
n
R{$ectfully submitted,
B
7 '
G!v
RDC.RARTI F
ey General of Texas
Prepared by W. Barton Bolinq
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Dunklin Sullivan
Gordan Caaa
Sam Jones
Bob Lattimore
SAM XDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLAWRITE
First Aaaistant
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