Untitled Texas Attorney General Opinion

TXXEA'ITORNEYGENERAL OF TEXAS AUSTXN 11. TEXAS WILL WILSON AlTGRNLCY GSNERAI. August 23, 1960 Hon. Charles J. Lleck, Jr. Opinion No. W-918 Criminal District Attorney San Antonio, Texas Re: Constitutionalityof Art. 5118a,V.C.S., authorizing commuta- tion by sheriffs of sentence of persons confined in county jail. Dear Mr. Lleck: This office is in receipt of your recent request for an opinion as to the constitutionalityof Article 5118a, Vernon's Civil Statutes. The essential portion thereof follows: ,, Commutat%onof time for good conduct, Indust ind obedience may be granted the Inmates of each county jail by the aherlff~In char e. A deduction in time not to exceed one third 7l/3) of the original sentence may be made from the term or terms of sentences wherino charge of misconduct has been sustained against the prisoner. A prisoner under two (2) or more cumulative sentences shall be allowed commutationas if they were all one sentence. . . .II The constltutlonalltyof the statute depends upon the conetruc$ionplaced thereon in light of Article IV, Section 11, of the Texas Constitution,as follows: "In all criminal cases, except treason and im- peachment, the Governor shall have power, after con- viction, on the written signed recommendationand advice of the Board of Pardon8 and PaFole8, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and under such rules as the Legislaturemay prescribe, and upon the wrjtten recom- mencjationand advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeiturea. The Governor shall have the power to grant one reprieve in any capital case for Hon. Charles J. Lieck, Jr., Page 2 (Ww-918) a period not to exceed thirty (30) days; and he shall have power to revoke paroles and conditional pardons. With the advice and consent of the Legls- lature, he may grant reprieves, commutationsof punishment and pardons In cases of treason." 11 . . .tt The courts have consistentlyheld that the authority to grant pardons and paroles and to commute sentences is vested in the Governor and that It cannot be altered by the Legislature. See Ex Parte Mlera, 64 S.W.2d 778, (Tex.Crim.App.1933), wherein the ~091% held: II In Snodgrasa v. State 67 Tex.Cr.R. 615, 150 s.w: i6i, 165, 41 L.R.A. (N.S.) 1144, this court defined a pardon as follows: 'A pardon, however Is held to be an act of grace proceeding from the power intrusted with the execution of the laws which exempts the individual otiwhom it I.8bestowed from the punish- ment the law inflicts for a crime which he has com- mitted.' The pardoning power Is 'inherentIn sovereignty, and may be lodged wherever the people determine. However, if once it has been conferred by the Constitution,it cannot be exercised by the Legislature. Underwood v. State, 111 Tex.Cr.R. 124, 12 S.W.(2d) 206, 63 A.L.R. 978; Ex Parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 2'3. Section 11, article 4, of our Constitutionexpressly confides to the Governor of the state 'power after conviction,to grant reprieves, commutationsof punish- ment and pardons.' Nowhere in the Constitutionis there any remission of such power to the legislativeor judicial blranchesof our government. It is observed that the power to pardon granted to the Governor Is to pardon after conviction,and that the Legislature is without authority to give to others the power to ,pardonafter conviction. Snodgraas v. State, supra; Ex Parte Muncy, supra. . . *" It should be noted that at the time of the opinion in the Mfera case, the Governor had complete authority to grant clemency, However, subsequently,in 1936, as a result of the lndescrlmlnateuse of such power by some governora, the conetitu- tional provision was amended to require the recommendationand advice of the Board of Pardons and Paroles prior to the governor's exercise of such power. (See "InterpretiveCommentary"following Article IV, Section 11, V&non's Annotated T&as Conetiutlon.) The courts have jealously guarded this power of the governor from any encroachmentby the Legislature or judicial branch of the government. See Ex Parte~~l~~s,supra, and the cases cited therein. Hon. Charles J. Lieck, Jr., Page 3 (W-918) In Ex Parte Anderson, 192 S.W.2d 280, (Tex.Crim.App. ), the court considered the constitutionalityof Article V.C.S. which states, In part, as follows: Commutation of time for good conduct, indust& &ii obedience shall be granted by the General Manager and twenty (20) days per month deduction shall be made from the term or terms of sentences of all prisoners In Class I . . . and ten (10) days per month deduction shall be made from the terms of sentences of all prisoners In Class II . . . .'I The Court of Criminal Appeals held the Act to be con- stitutional and In so dolq distinguishedthis type of commutation from that which is a mere act of grace of the sovereign:” "The power of the Legislature to authorize, by statute, reduction of sentences of convicts for good conduct is generally accepted. That power rests upon the fact that the commutationis allowed as a reward for the good conduct and behavior of a prisoner. 41 Am.Jur., p. 914, sec. 41. So then, In order for a convict to be entitled to commutation,he must first earn It in accordance with the statute and the requirementsthereof. "A statute that extends to convicts commutation of sentence as a mere gift or as a matter of clemency would be violative of Article 4, Sec. 11, of our State ConstitutionVernon's Ann.St., which places the matter of'clemency to convicts exclusively in the hands of the Board of Pardons and the ffovernor of this State. "The fact, then, that a convict must first earn, by his own conduct, commutationextended by the Legis- lature Is a distinguishingfeature. CommutationIs earned by the convict. Clemency is extended as an act of grace by the authoritieshaving that power under the Constitution." By applying the foregoing authorities to Article 5118a, V.C.S., we are constralnedto hold that the statute is constitu- tional. The only essential difference between Article 6184-1, V.C.S., which was held to be constitutionalin the Anderson case, SUP and Article 5118a, V.C.S., l.8that in the l&%ter,'the aheF"' iff is'glven the discretion of giving a prisoner a deduction In time even though he has a record of good eonduct. This simply me@ that where a prisoner has an unquestionedgood conduct regprd, the sheriff is not under a duty to release him In less timf than called for in the sentence. Thus, the crucial question Hon. Charles J. Lleck, Jr., page 4 (w-918) is whether this kind of discretion Is within the prohibition of Article IV, Section 11, of the Conatltutionas Interpretedby the Anderson case, eupra. The only act prohlbited by the Anderson case, supra, is the release of a prisoner when he has not earned a commutatlon In accordance with the statute; that Is, by exhibitinggood conduct. Article 5118a, V.C.S. plainly requtrea good conduct as a basis for commutation. Thus the sheriff can only commute a sentence where the same facts exist as required by Artiole 6184-1, V.C.S. The fact that the Legislature has given him the rl ht to not commute a sentence, can in no way InvalidateArticle 511fa, V.CT By not commuting a sentence, he cannot be said to have exercised clemency. Conversely,neither can he exercise clemency where he oommutes a sentence on the basis of good conduct. Therefore, Article 5118a must be held to be constitutional. SUMMARY Article 5118a, V.C.S., granting the sheriff the authority to commute the sentences of county prisoners upon good behavior, la not In oonfllct with Article IV, Section 11, of the Texas COnStl- tutlon, which vests olemenci power In the Oovernor and the Board of Pardons and Paroles. Yours very truly, WILL WILSON Attorney General of Texas Dotild R. Bernard A,saistant DRB:ljb APPROVED: OPINION COMMITTEE: W. V. QEPPERT, Chairman Ceoi.1Cammack Ralph R. Rash Lawrence Hargrove REVIEWED FOR THE ATTORNEY GENEF&AL BY Leonard Passmore