R-773
:’,,! 1
.“-
5 aji:
OFFICE OF
THE A~T.~~NEYY GENERAL
PRICE DANIEL FAGAN DICKSON
AmtnwKY GENERAL October 28, 1947 RPST UclIlllANT
State Board of Pardons & Paroles
Austin, Texas
ATTW: Hon. Walter C. Strong, Member
Oplnlon No. v2415
Re: Cons~ltutlonalltyand
constructionof Ii.B.
~120, 50th Legislature
Dear Sir:
You have requested our opinion relative to
various matters arising by virtue of the "Adult Pro+
batlon and Parole Len" passed by the 50th Legislature
(H. B. 120). We will restate your questions end an-
swer each question immediatelyfollowing each re-
statement. We will then proceed with a general dls-.,
cusslon as to our'constructlonof the Act and the l&w
upon which we based our ::qswers;
Question No. 1"'.Ia Section 12 of H. B. 120,
50th Legislature,constl~~~tlonally valid tid does It
supersedethe constitutionalamendment that designates
paroles as reprieves?
.We know of no constitutionalamendment that
designatesparoles as reprieves. In fact, a parole is
not a reprieve or any form of executive clemency. Sec-
tion 12 of said Act Is therafore not unconstitutional
as being in conflictwith Section 11 of Article Ip of
the Constitutionof Texas. .
Question No. 2: Reprieves having been con-
sidered by the'pr&vious penitentiaryofficialsas pa-
roles, Is the,Board of Pardons and Paroles under H. B.
120 to consider such~terms,I*eprleves and paroles, as
synonymous?
The Board of Pardons and 'Parolesshould not
consider reprieves and garole, as being synonymous.
$1: 82
State Board of Pardons and Paroles, Page 2 (V-415)
Question No. 3: Sections 1 to 7 inclusive
have reference to probation. Section 1 states "the
courts of the State of Texas having original jurls-
diction of criminalactions, etc." Does this include
corporationcourts, justice courts, and county courts
in criminal cases for misdemeanors;and do such courts
have the right to probate persons convicted therein?
Corporationcourts, justice courts, and coun-
ty courts do not have'the authority under this Act to
place persons convicted in such.courtsunder probation.
Question No. 4: Se&i&'7 states that the
Board of Pardons.andParole& created by the Constitu-
tion of this State shall administer the provisions of
this Act and &hall act as the State Board of Proba-
tion as authorizedby Section lla, Article IV, of the
Constitution. Section 8 provides for a method for se-
lection of the Board members by creating a committee,
examlnirigapplicants. Wewould like to know whether
or not these two sections are ln conflict with the con-
'stltutlonalamendment,Section 11, Article IV, creating
the Board of Pi&ions and Parole! and~are they constltu-
tlonal?
We do not find where.% a State Board of Pro-
bation is mentioned ln Section lla of Article IV of
the Constitution. Section 7.i~ not In conflict with
the constitutionalamendmenji, S&c. 11, Art. IV. Al-
though the Act in said Section 7 provides that the
constitutionalBoard of Pardons and Paroles shall act
as a State Board of Probation,we do not find anywhere
In said Act ,wherelnsuch Board is given any duties to
perform in reference to probation. Section 8 of said
Act Is unconstitutionalIn that it Is In conflictwith
Sec. 11 of Art. IV; for the State Constitutionprovides
only one qualificationfor members of the.Board of Par-
dons and Paroles--thatthey "shall have been resident
citizens of the State of Texas for a period of not less
than two years immediatelypreceding their appointment."
Question No. 5: Does not the reference to
probation require the trial judge who tries criminal
cases and puts a defendant on probation to retain jur-
~lsdlctlonof the,case and administer same; and that
the Board of Pardons,and'Parolesshould not take juris-
diction of such case until the party has violated his
probation and been committedand received at the peni-
tentiary of this State?
State Board of Pardons and Paroles, Page 3 (V-415) ic ‘83
The ProbationAct does contemplatethat a
prisoner on probatlop la wlthia the cimtlnulng’jurls-
diction of the court of conviction,risslsted, of course,
Srcm time to time as’may be n6cessary ln the enforce-
ment of his jurlsdlctlon,by the proper probation of-
ficer or officers. Of course,, when the probationerhas
lost his status as a probationer,and the gates have
been closed upon him by the officials of the penlten-
Mary or other place of correctionalconfinement,the
Court’s jurisdictionceases. The Judge has performed
his judicial functionsunder the law.
QtiestlonNo. 6: It will be observed that
this Act does not provide for the appropriationof
any funds so that it could be administeredand, for
that reason, la the Board required to try to adminis-
ter same?
It 1s the duty of the Board of Pardons and
.Parolesto admlnlster,thlsl+W Insofar as they possibly
can with whatever funds are availableto them..
Quest& Ho. 7: Seutlon 12 states “the
BMrd is h6reby &tithorized.to r&lease on parole with
the approval of the Governor any person confined In
any Renal or correctionalinstitutionin this State,
etcr Is’thls not ln conflict with the Constltutlon
undiir,
which the Governor has the authorityto-release
pg$ze;;om the penltentl~~, and there~~~e’unco~tl-
As stated in our answer to your ‘Questior~HO.
;;‘$z:on 12 1~ not ln conflict with the Constitution
It provides that the Governor shall have
the powe; after ~convlctlon,on the recommendationOS
the Board of Pardons.and Parole?, .togrant reprieves
+,d comutatlons of punls?ment. and pardons.
Question No. 8: Section 20 sets out, am~ti
othir thinga, that a paroled prisoner who la amused
of vlolatlng his parole,,~ls
entitled to’s hearing and
states when the Board has determined this matter, they
may revoke his parole. Is this not ln conflict with
the constitutionalamendment areatlng the Board OS
Pardons ‘and‘Paroles,and placltigthis duty upon the
Governor of thenState?
Sections20, wherein’lt attempts to authorize
the Board of Pardons and Paroles to revoke a.parOle
;. -.-
i..-- 84 State.Board,oS Pardons and Paroles, Page 4 (v-415)
.-,.I
theretoforegranted, Is unconstltutlqnalln that It J.s
in conflictwith that portion of aectloti11 of Article
IV of our Constitution,which provides that "The Gov-
ernor shall have the power to revoke paroles."
Question No. 9: Sectlon 19 authorizes the
Board to issue warrants for the return of a parolee
to the penitentiary,upon finding a violation of his
parole, and that any probation or parole officer or
any other peace officer may.arrest a parolee without
a warrant when the parolee has, ln the judgment of
the parole offJeer or peace officer, violated the con-
ditions of his'parole. Can this Section of the bill
legally give such officer the right to make arrests
as stated therein?
Inasmuch as the Governor is the only person
who can revoke a parole, such parolee Is entitled to
his liberty under such parole until it has been re-'
voked by the Governor; and It is our opinion that, un-
til such revocation,neither probation nor parole of-
ficers nor any other peace officer may arrest a parolee.
and deprive him of his liberty by virtue of such con-
viction, either upon a warrant issued by the Board of
Pardons and Paroles or without suah warrant.
Question No; 10: Section 9 requires members
of the Board to give full time to the duties of their
office and to be paid a salary of $6,000 annually. Ho
appropriationhas been made for thla. Does this en-
title each member of the Board to a deficiencywarrant
for the differencebetween the $6,000 and'the salary
he is being paid at this time, as shown in the Appro-
priation Bill?
House Bill lo. 807,of the 50th Leglslature
makes the salaries of those officerswhose salaries
are statutorilyand not constitutionallyfixed at the
sums appropriatedtherefor for the current biennium.
The current member salaries are only $4,764.00. There
csn be no deficiency IS the appropriatedsalaries are
paid.
Question No. 11: Should the Board in making
its recommendationsfbr clemency to the Governor place
ln such recommendationsthe conditionsrequired OS the
parolee, or shoiildthe Governor place such conditions
ln his proclamations,when the recommendationsdo not
contain them?
7 -- 85
State Board of Pardons and ParolesI Page 5 (v-4$5)“:
--
As stated above, the releasing ,oSa convicted
person on parole fs'not :811
act or executive~clemency.
This Act provides that a person who has served the re-
quisite time In the penitentiarymay be released on pa-
role by the Board of Pardons and Paroles upon the ap-
proval by the Governor. The Board, therefore,does
not make recommendationsfor the release on parole--
but should grant the parole by its own proclamation,
snd should incorporatetherein the conditionsrequired
of the parolee, which should be submitted to the Gover-
nor for his approval or disapproval. OS course, such
parole would not become effective until approved by
the Goverpor as provided for In the Act, and accepted
by the parolee.
Question No. 12: Could the Board make rec-
ommendationsfor clemency Under the cons@tutlonal
amendment creating the Board, which does not refer to
parole, and without consideringthe requirementsreferred
to In the bill with reference to parole?
Inasmuch as the granting of a parole'is not
the -tit&g of executiye clemency, the Board ii mak-
ing'z%Mmmeiidatlons to the,GovernorSor.executlve
clemency--whichln~ludes~reprleves;commutationsof
punl@ment, and pardons--Isnot required to consider ..
any of the prwislons contained in this Act, and may
make In its recommendationsany condition or conditiona
not Illegal, immoral or Incapable of performance.
Question No. 13: What is the difference,If
any, with reference to recoannendlng
a reprieve;.a con-
ditional pardon, or a parole? They all have the effeat
of releasinga prisoner f?%mthe penitentiary.
As stated above, the.Board does not recommeid
a parole.
GEN!&U DIS&SSION
We note that In your first letter of request
you state "the Board will appreciate an interpretation
of the.Act as a whole;" .so In addition to the answers
above made to your specific questiOns,~and the dlecusslon
of the reasons for such answers to follow, we wUl at-
tempt to Interpret the Act as a whole as well as the
various sections thereof.
! --’.; ,,;3&
Ed- State Board of Pardons and Paroles, Page 6.(V-415)
Section 11 of Article IV of the Texas Consti-
tution before its amendment in 1936 read as Sollows:
"In.all criminal cases, exce t treason
and impeachment,he (the GovernorP shall have
power after conviction,to grant reprieves,
commutationsof punishment and pardons; and un-
der such rules as,the Legislaturemay prescribe,
he shall have power to remit Sines and Sorfel-
tures. With the advice and consent of the Senate,
he may grant pardons~In cases of treason;and to
this end he may respite a sentence therefor,un-
til the close of the succeedingsession of the
Legislature;provided, that in all cases of re-
mlsslons of fines and forfeitures,or grants of
reprieve, commutationof punishmentor pardon,
he shall file In the office of the Secretary of
State his reasons therefor." (Parenthetical
matter ours)
Such Section as amended in 1936 reads as Sollows:
"There is hereby created a Board of Par-
dollsand Paroles, to be composed of three
members~,who shall have been-residentciti-
sens.of the State of Texas for,a period of
not less than-two years Immediatelypreced-
ing such appointment,each of whom shall hold
office for a termof six years;~providedthat
of the members of the first board appolnted,
one shall serve for two years, one rorfbur
years and one for six years from the first
day of February, 1937, and they shall cast
lots for their respective.terms. Gne mem-
ber of said Board shall be appointedby the
Governor, one member by the Chief Justice of
the Supreme Court of the State of Texas, and
one member by the presiding Justice of the
Court of Criminal Appeals; the appointments
of all members of said Board shall be'made
with the advice and oonsent of two-thirdsof
the Senate present. Each vacancy.shallbe
filled by the respective appointingpower
that theretoforemade the appointmentto such
position and the appolntlvepowers shall have
the authority to make recess appointmentsun- ._
til the convening of the Senate.
"In all criminal cases, except treason
and impeachment,the Governor shall have power*
State Board of Pardons and Paroles, Page 7 (v415)i:Z a7
after conviction,on the written signed rec-
ommendationand advice of the Board of Pai?-
d0n0 ana Paroles, or a majority thereof, to
grant reprieves and ccmmutatlonsof punlsh-
ment ana pardons; ana under such rules as
the Legislaturemay prescribe, and upon the /
written recommendationand advice of a m&
jorlty of the Board of Pardons and Paroles,
he shall have the power to remit Sines and
forfeitures. The Governor shall have the
power to grant one reprieve in any capital
case for a period not to exaeed thirty (30)
days; and he shall have the power to revoke
paroles and conditionalpardons. With the
advice and consent of the Legislature,he
may grant reprieves,commutationsof punlsh-
ment and pardons in cases oS.treason.
“The Legislatureshall have power to
regulateprocedurebefore the Board of Par-
dons and’Parole8,.
and shall require it to keep
record of Its actions and the reasons there-
zro& p shall have authority to enact parole
.
The Texas Constitutionwas amended ln 1935 by
addlng Section 1lA to Article IV, which reads as follows:
“~TheCourts of the State of Texas kav-
ing original jurlsdlctlonof crtiinal ac-
tions shall have the power, after convlc-
tlon, to suspend the imposition or execu-
tion of sentenceand to place the defend-
ant upon probation and to reimpose such sen-
tence, under such conditionsas the Legisla-
ture may prescribe.” ,,
We do not find any other provlalons of our State Co~stl-
tutlon that we deem applicableto’House Bill Ho. 120.
The first six sections of said Act give the
power to the courts of record of the State of $e%as~‘hav-
lng original j~sMtion of cm-1 actions, in &r-
taln instances,to suspend the lmposltlon or~the execu-
tion of tientenceand placetheconvlcted defendant On
probation for the maXimum period of~the sentence lm-
,posed. Such sections further provide for an lnvestlga-
tlon by a probation and parole officer of thencirca-
stances of the offense, criminal record, social history
c--
2,-- 88 .’
St&e Board of Pardons and Paroles, Page 8 (V-415)
and present condition of ~thedefendant, as well as
other matters. It provides that such courts shall de-
termine the terms and conditions of the probation and
lists various conditionsthat may be included In such
probation,and provides that upon the expirationof
the period of probation such courts by order shall dis-
charge the defendant. It also provides that having
dischargedthe defendant, such courts may set aside
the verdlctorpermit the defendant to withdraw his plea
of guilty and dismiss the accusation;complaint,in-
formationor Indictmentagainst him ln a manner very
similar to that provided for ln the case of a suspend-
ed sentence. It also provlde~sthat such courts may
Issue a warrant for the defendant for violation of any
of the conditionsof the probation and provides that
such courts shall grant a hearing on the question of
such violation,without a jury, and may continue or
revoke the probation,with the right of the probatlon-
er to appeal the revocation.
As stated ln snswer to your third question,
It is ‘ouropinion that corporationcourts, justice
courts, and county courts do not have,the authority
to place persons convicted ln such courts under pro-
batlon, for the reason that such.courtshave jurlsdlo-
tlon to try only persons charged with misdemeanors.
You~wlll note that-both the Constitution(Sec. 1lA OS
Article IV) and this Act give the courts. the power,
after conviction,to suspend the lmposltlonor execu-
tion of sentence and to place the defendant upon pro-
bation and to reimpose such sentence. . -.” (Under-
scoring ours). A sentence is imposed only In felony
cases. See Chapter 3 of.our Code of Criminal Proce-
dure. Such Chapter provides for a “judgment”and a
“sentence”,+pfelony cases, but for only a “judgment”
ln misdemeanorcases. As used In the Constitutionand
this Act, Is the word y’sentence”to be construedas
meaning also “.judgment”?We thlnk not. As stated in
12 Tex. Jur., Par. 355, P. 717;~“Judgmenttinasentence
are not the same thing; the twoare distinct and in-
dependent.” Furthermore,both-the Constltutlonand
this Act state that the courts shall have “the power,
after conviction,to suspend the imposition. . . OS
sentence”and then to place the defendant on proba-
tion. IS “sentencenmeans ‘judgment, n then the courts
have the power to suspend the imposing of a judgment
and then to place the defendant on probation. There
has to be a judgmentbefore there is a conviction. If
you do not impose a judgment, that Is,,suspend Its
c:
State Board of pardons snd Paroles, Page 9 (V-415p-
89
imposition,you do not have a conviction;and then to
place a derendantunder restraint of his liberty,by
plaolng him on probation,would violate our Constltu-
tion, which provides that:
%o citizen of this State shall be de-
prived of . . . liberty, . . . prlvlleg&
except by the due course of the law
&'tie land."
You will further note that the followingwords are
used in the Act: "of the sentence imposed";,"might
have been sentenced";"the sentency judge ; %hall -
be sentenced." E word "judgment la never used.
It appears to us that the language used ln
providing for the probation of convicted defendants~
1s clear and unambiguousand therefore needs no con-
structiotrwlth the exception of that portion which ;.
states that the probationer,In the event his proba-
tion Is revoked, may appeal the revocation, In that
it does not state to whom such appeal will be made.
The followingSection 7 prwides.that the Board of
Pardons and Paroles, created by the Constitution
of this State ln Sec. 11, Art; IV thereof, shall ad-
minister the provisionsof this Act snd shall also
act as the State Board or Probation, The Legislature
may have intendedthat the probationerwould have.the
right to appeal the revocation,tosuch State Board
of Probation;but, ln the absence of language so
stating,we are l.ncll.n&dto the view that such appeal
should be made to the Court of Criminal Appeals as
that Court has been granted appellate jurisdiction
In all criminalm@ters.
The only question that arises Ln our minds
as to the authorityof the LeglFjlature to give the
courts of this State the right to release on proba-
tion a person who has been convicted of a criminal
offense is the question as to whether or not such
release on probationwould conflict with the consti-
tutionalpower granted to the Governor, after eon-
victlon, to grant reprieves and commutations:oS
punishmentand pardons. OS course, if such release
on probation Is a reprieve or a cOmmutatlOnof pun-
ishment or a pardon, then such action granting such
power to the District Court would be unconstltutlonal
In that such power .hasbeen granted by the Constltu-
tlon exclusivelyto the Governor of this State. The
ic go State Board of Pardons.andParoles, Page& (V-415)
same would be true as to the portion of this Act, which
will be hereinafterquoted, which gives the Board of
Pardons and Paroles authority to release a convicted
person on a parole with the approval of the Governor
IS such parole is either a reprieve, commutationof
punishment,or pardon. Hence our dlacusslonas to
whether or not this act,lriglvingthe courts author-
ity to release a person on probation Is in conflict
with Section 11 of Article IV of our Constitution,
will likewiseapply to those provisions giving the
Board of Pardons, with the approval of the Governor,
theright to release.convlctedpersons under a parole.
A pardon 1s an act of grace proceeding from
the power entrustedwith the execution of the laws,
which exempts the lndlvldualon whom it 5.8bestowed
from the punishment the law .lnSlictsfor a crlisehe
has .commltted.Young v. Young, 61 Tex. 191; Ex Parte
Rice, 162 S. W. 891. There are several kinds of par-
dons; thus a pardon may be full and uncondltlox+;'
partial or conditional. Cam v. State, 19 Tex. App.
635; A pardon Is condltional:.where it does not become
operativeuntil the grantee has performed some apecl-
Sled act, or where it becomes void when some speclfled
event transpires. Snodgrass v. State, 150 S. W. 162.
Commutationof punishment Is the change of
a punishmentto which a person has been sentencedto
a less severe one. gnodgrass v. State, 150 S. W. 162.
A reprieve 1s the withdrawingof a sentence
for an interval of time whereby the executlonthere-
of is postponed to a day certain. Snodgrassv. State,
150 s. w. 162.
A parole Is the conditionalrelease of the
convict before the expiration of his term, to remain
subject, during the remainder thereof, to supervlsion
by the public authority and to return to lmprlsonment
on violation of the condition of the arole.
of Prison Commissionersv. DeMoss, 16;'s. w. l%"'"
The Court In-Corn.Rx. Rel, Banks v. Cain, reported In
143 A.L.R., p. 1473, held that the power of parole
ofasan adminlstratlvefunction whidh does not impinge
upon the judicialpower of‘sentencingthe accused in
conformitywith the law; that the sentencewas in no-
wise interferedwith; that the parolee was not dis-
charged but merely serves the remainder of his sentence
by having his llberty.restra+nedin a manner ana&OgOus
.,-.
State Boapd of Pardons and Paroles, Page 11 (V-415k-
:I- ~~.$I
to that emp1oyed.M the "trusty"or '%onor"'systemof
prison discipline;and that a Parolee was merely serv:
ing his time outside the prison walls which was In
legal effect imprisonment. The Court further stated
as Sollows:
"A parole, . . . does not obliterate
the crime or forgive the offender. It is not
an act of clemencybut a penologlcalmeasure
for the UlscipUnary treatment of prisoners
who seem capable of rehabilitationoutside
or prison walls. It does not set aside or
affect the sentence;the convict remains in
the legal custody of the state and under the
control of Its agents, subject at any time,
for a breach of condition,to be returned
to the penal Institution. Neither Is a pa-
role a commutationof sentence within the
meaning of that term In the constitutional
provision."
The Constitutionconfers upon the Leglsla-
t-e the power to define crimes and fix the punishment
thereror. This Act does not authorize the courts or
the Parole Board to suspend any law of this State; but
the Legislaturehas provided that in certain contlngen-
.cles,as part of the fixed punishment,the convicted
defendant in felony cases may serve a portion of his
sentenbe outslde the prison walls. This Act should be
applied to and read Into each and every article or the
penal code fixing unlshment for felony offenses. See
Baker v. State, 15t;S. We.998.
We are of the opinion that both the.probatlon
and parole provisions of the Act in question constitute
part of the punishmentprovided by the Legislatureto
be inflictedon those who offend agalnst~ourcriminal
laws. To illustratein reference to the burglary stat-
ute, as was done by the Court in the Baker case,.supra,
since the passage of H. B. 120, 'suchstatute now reads
as roiiows:
'The offense of burglary Is constltut-
ed by.enterlnga hou8.eby force with the $n-
tent to commit the crime of theft, and the
punishment~forthe crime shall be lmprison-
ment In the penitentiarynot less than two
nor more than twelve years, provided that
IS before trial the person charged with the
i:: ,@
St&e Board of Pardons and Paroles, Page 12 (v-415)
offense shall request In writing that the
issue of whether or not he has ever before
been convicted of a felony shall be submitted
to the Jury, and If the jury shall find that
such person ought not in any event be confined
In the penitentiaryfor a longer time than
five years, and has never before been conyict-
ed of a felony,'they may in their verdict fur-
ther find that no punishment shall be assessed,
If within a given,periodof time he commits
no other offense against the laws of this.
state; but in the event he shall commit another
offense, then he should be punished by confine-
ment in the penitentiaryfor a given period of
time as stated in their verdict, and provided
further, when it shall appear to'the satisfac-
tion of the Court that the ends of justice and
the best 'Interestsof the public as well,as
the defendant will be subserved thereby, the
court shall have the power after convictionor
a plea of guilty, and where the maxlmum punish-
ment assessed the defendant does'not.exceedten
years Imprisonment,and where the defendanthas
not been previously convicted of a felony, to
suspend the Impositionor the execution of sen-
tence end place the,defendant on probation for
the maximum period of the sentence Imposed, in
accordancewtth the ternis'andprOViSiOnS of
H. B. 120, Fiftieth Legislature of Texas, Andy
provided further that the Board of Pardons and
Pkroles.is authorizedto release on parole with
the approval of the Governor after he has been
confined In any penal or correctionalin&i-
tutlon in this State, and after.he has served
one-third of the maximum'sentenceimposed, In
accordancewith the provisions of:H. B. No.
120 of the Fiftieth Legislature.
You will also note that the Se&ion il of Article
IV of the Texas Constitutitinas amended in 1936 gave the
Legislaturethe authority to enact arole laws. You
will further note that paragraph (iP under Sec. 36 of
the Act In question defines "ExecutiveClemency" to mean
a "pardon,commutationof sentence, reprteve, remission
of fine or forfeituregranted by the Govern05 or any of
these, but not arole or any form of parole, and that
in paragraph (JP under Sec. 36 It defines probation as
the release of the convicted defendant by a court under
conditionsimposed by the cotit. Thus we find that the
State Board of Pardons and Paroles, Page 13 (V-415)
Constitutionas well as the Legislaturehas construed
the terms 'parole"and "probation"as not to constitute
an act of executive clemency. We have examined the de-
cisions of the courts In other states and find that
they have held that a parole is not a commutationof
punishmentor a pardon. See State v. Duff, 144 Iowa
142, 122 NW 829, 24LRA (NS) 625, 138 Am. St. Rep. 269;
Rx Parte Patterson,94 can. 439, 146 P. 1009; LRA
1915 F. 541; George v. Lillard, 106 Ky. 820, 51 SW
793, 1011; State ex rel. Bottomlr v. District Court.
~~gMo;tb~~:, 237 P. 525; State';. Peters, 43 Ohio St.
3 .
The Court of Criminal Appeals In Rx Parte
Black, 59 S. W. (2d) 828 held that a proclamationof
the Governor which was termed a "furlough"and which
merely postponed the time of servIngtithesensencewas
.actuallya 'reprieve"and was not a parole. The
Court further held that a parole in Its legal aspect
has no relation to the power conferreduponthe Gov-
ernor in Sec. 11 of Article IV of the State Constltu-
tlon to grant reprieves, commutationsof punishment,
or pardons.'
Section 8 of the ActIn question creates a
nomination committee for the purpose of certlfylng
to the appointingauthoritiesprovided ln Sec. 11 of
Article IV of our Constitution.persons eligible to be
appointedto the Board of Pardons and Paroles. As
stated above, It is.our opinion that this Section Is
unconstitutionalin that It is in direct conflict
with said Section of the Constitutionwhich-states
that the only qualificationneeded to be eligible to
be appointedto said Board is that the person appoint-
ed shall have been.a resident citizen of the State of
Texas for a period of not less than two years imme-
diately preceding such appointment. 9 R.C.L. 1124;
Dickson v. Strickland (S. Ct.) 265 S.W. 1012.
Section 9 of the Act provides for the
$~,OOO.OOannual salary of the members of the Board
of Pardons and Paroles and further provides that
the Board shall meet at the call of the chairman
or from time to time as may.be determinedby a ma-
jority vote of the Board, and that a majority of the
Board shall constitutea quorum for the transaction
of all business. This Section is valid. The por-
tion thereof which provides for an annual salary of
$~,OOO.OOis ineffectual,, as stated above, in that
E 94~
State Board of Pardons and Paroles;Page 14 (V-415)
H. B. No. 807 limits the salary of the members of the
Board of Pardons in such amount as is provided for e
the General AppropriationBill, which is there fixed
at $4,764.00 for each year of the,'kurrentbiennium.
&?&ion 10 pertains to ~theduties of the
Board of Pardons and Paroles which seems to be clear,
and unambiguousand needs no Interpretation.
Section il merely pkvldes for office quar-
ters of the Board.
Section 12, we feel, should be quoted in
full. It reads as follows:
?he Board Is hereby authorizedto
release on parole with the apprwal.of the
Governor any person confined in any penal
or correctional,lnatltutlon~in this State,
except persons-inidersentence of death, who
has served one-third (l/3) of the e
sentence.%npoeed,provided that in any .
case he me9 be paroled after serving fif-
teen (15)~years. All paroles shall Issue
upon order of the Board..duly adopted and
approved by the ffovernor.
"Within one year after.hls admISsion
and at such intervals thereaitiras It may
determine, the Board shall secure and con-
sider all pertinent Informationregarding
each prlsoner, except any under sentence
of death, including the circumstances Of
his offense, his previous social history
and criminal record, his conduct, employ-
ment and attitude In prison, and the reports
of such physical and mental examinationas
have been made.
"Before ordering the parole of any
prisoner, the Board may have the,prisoner
appear before It and intervfew him. e-
role shall be ordered only for the best in-
terest of society,not as an award of clem-
ency; it shall not be consideredto be a
reduction of sentence or pardon. A prison-
er shall be placed on parole only when ar-
rangementshave been made for his proper
employment or for his maintenanceand care,
:.-
-
State Board of Pardons end Paroles, Page 15 (v-415)- 95. -;
and when the Board believes that.he 18,.
.ableand willing to Ailfill the obllga:
tions,of a law abId% cltlzti. ,.Every
rlsoner while on psrole shall remain In
e legal custody of the lnstltutlonfrom
which he was released but shall be amena-
ble to the orders of the Board.
"The Board may adopt such other rules
not Inconsistentwith law as it may seem
proper or necesssry,wlthrespect to the
ellgibllltyof prisoners for parole, the
conduct of parole hearings, or conditions
to be Imposed upon paroles. Whenever an
order for parole is Issued it shall recite
Ihe conditionathereof.
"It shall be the duty of the Board at
least ten (lO).daysbefore ordering the pa-
role of.any prisoner or upon the granting of
executive clemency by the'Governorto notify
the Sheriff, the District Attorney and the
District Ju e in the county,wheresuch per-
9 cted that such,p@roleor clem-,
son was conv
tncy iS belng consideredby the Board or by
the Governor.
"If no probation and parole offlcer.has
been assigned to the locality where a person.
Is to be.releassdon parole ~orexecutive~clem~
fncy the Board shall,notifythe chairman of
the Volunteer Parole Board of such co+y
prior to the release of such person. The Board
shall request such Volunteer Parole.Board,in
the absence of a probation and parole officer
for informationwhich would hereinbe required
of such duly appointedprobation and parole of-
ficer. This shall not however preclude the
Board.fromrequesting yormation from any
agency In such locality. (Ukderscoringours)
Sections 13, 14, 15, 16, 17, .and18 have refer-
ence to the powers and duties of the judges, blstrlct.at-
torneys, county attorneys,,pollceofficers, prison offl-
clals, and Board of Pardons end Paroles In ZWferpXW to
administeringthis law. Thea6 Sections appear to be
plain and unambiguous,and we know of no provision of
the Constitutionwith which they conflict.
State Board $Pardons'and P&roles,.Page,l6.(V-415)~
Section 19 authorizes the Board,upon a.show-
ing of probable violation of parole to issue a warrant
for the return of any paroled prisoner to the lnstltu-
tlon from which he was paroled. It further provides
that after the isstianceof such warrant the parolee
shall~bedeemed a fugitive from Justice. As stated
above,,theConstltutlonof Texas grants to the Gover-
nor the sole power to revoke a parole., Until the Gov-
ernor has exercised such power,>theparolee Is entitled.
to his liberty. Section 19 Is thereforeuncontitltutlon-
al.
The first paragraph of Section 20 reads as
follows:
'Any prisoner whopcommits a felony
while at large upon parole and who is con-
'victed and sentenced therefor may be re-
quired by the Board to'serve such sentencer
after t$F original.senteneeh?s bten corn-
pleted.
It ls'our opinion that this portion 6f See. 20 ti uncon;
stitutlonalIn that it makes it'dlscretlonarywith the
Board of Pardons and Paroles as to whether.or.'nota per- I
son who is convicted and sentencedfor a felony~~hlleat
large upon a parole, will serve such sentence'asimposed
by the Court- after the original sentence has been com-
pleted." The .Leglslaturehad the authority, as here-
tofore stated, to grant to the.Board the authorityto
release a prisoner under a parole, as such act does not
amount to executive clemency; but it does not have the
authority to vest in an administrativeboard the power
to determ+e the tIniswhen a person convicted of a penal
offense will be required to serve his sentence. Whether
the sentences shall run concurrentlyor cumulatively
is a judicial function.
The follow~~~~portlonof Section 20 attempts
to give the Board of Pardons and Paroles the authority
to revoke paroles. As heretofore stated, this power
has been conferredupon the Governor by the Constitu-
tion of Texas, and the Legislaturedoes not have the
authority to grant that power to said Board or to any-
one else.
Section 21 provides that when a paroled prl-
soner has performed the,oblSgatlonsof his parole for
such time~as shall satisfy the Board that his final re-
lease is not incompatiblewith his welfare and that of
State Board of Pa&dons and Paroleti,/Page
17 (V-415fr f%$
society, the Board of Pardons and Pai?olesmay'make a
final order of dischargeand Issue to'the paroled -
prisoner a certificateof discharge; It ls.our opln-
Ion that Section 21 is unconstitutionalIn that such
order of discharge end the IssuSmce'tothe paroled
prisoner of a certificateof diticharge would In legal
effect amount to a pardon.ln that it would exempt the
person from the unexpiredportion of the punishment
inflictedupon him for the crime he had committed.
As the Constitutionconfers the sole right of grant-
ing pardons to the Gove-or, the Legislaturedoes not
have the ,authorityto grant this power to any other
person 07 board. If the Board has power to reduce the
maximum sentence,by releasing from parole before the
expirationof that sentence,it has power to commute
sentences,which authority,as heretofore stated, has
been placed exclusivelyin the hands of.the Governor
by the Constitution. And to pennit such action on
the part of the Board would clearly interfere with
the lawful judgmentof 6 court. Board of Prison
Com'rs. v. DeMoss KY.) 163 Si W. 183; Woods v. State
(KY.) 169 S. W. 54 ; Crimnonwealth.ofPenn., Ex Rel
Banks v. Cain et al, 143 A.L.R. 1473. .,'
Stcticin22 proV$des that the~Boar&of Pai?-
~~~ie-'irila'-P~~~~s;'upon
requ&st of the Governor,~.shall
invtiiitigate
and report to the,GoVeTnorIn ~Feference
to'sny person whqJiisbeing-,coxisldered
by the Governor
foYpardon, caaenutation of sentencei reprieve, or r+-
misslomof fine or forfeitureand to make recommenda-
tions thereon. mls Section Is ~J.n harmony with Sec-
tion 11 of Article IV of our Constitutionand there- I
fore In all respectsvalid.
Section 23 of the Act provlde~sfor the
Board appointinga person to the position of 'Di-
rector of Probation and Paroles".anddefines the
duties of,,suchofficer. This Section contemplates
that such officer should receive a salary and per-
form full-timeduties, but the Legislaturehas
failed to make an appropriationfor such salary;
and by reason thereof said S~ectionwill have no
force and effect until such time.as a subsequent
Legislaturemay make such appropriation.
Sections 24, 25, 26, 27, 28;and 29 pro-
vide for the appointmentof probation and parole of-
fleers and define their duties and powers sindprovide
for their assignment to various courts of the State.
:;_-Y. gfJ
State Boardcf Pardons and Paroles.,~
Page ,18(V-415)
It is contemplated from such,Sect$.onsthat these pro-
bation and parole officers are to be full-time employ-
ees and receive a salary for their services. &wever ,
the Legislature has made no appropriationsto pay the
salaries of such officers and by reason thereof, such
Sections are ineffectual until a subsequent Leglsla-
ture appropriatesmonies with which to pay the salar-
ies of such officers.
You will note that in Section 12 of.this.
Act it is provided that in the event no probation 'and
parole officer has been assigned to the locality
where a person is to be released on parole or execu-
tive clemency, the Board shall notify the chairman
of the Volunteer Parole Board of,~suchcounty prior
to the release of such person, and that the Board
shall request such Volunteer Parole Board, in the
absence of a~probatlon and parole officer, for in-
formation which would thereInbe required of such
duly appointed probatlon~andparole officer; snd
that Sectlon~fkrtherprovides thatthe Board Is not
excluded from requesting Information from any agency
in such locality. We realize that In the absence of
a paid "Directorof Probation-sndPsrold~,~ and in
the absence 'orpaid *Probation and-Parole Officers,"
assigned to the various courts throughout the State;
and by reason ofthe insufficiencyof,the appropria-
tions with which to carry out the provisions of this
and Paroles will be handi-
Act, the Board Of Ps.??dOns~
capped In their efforts In administeringthis law.
However, the various Volunteer Parole Boards, the
county officials, and peace officers will doubtless
co-operatewith the Board lnevery way and will be
able, to a great extent, to perform the duties con-
templated to be performed by these officers.
Section 30 of the Act reads as follows:
"The provisions of this act are here-
by extended to all persons who, at the ef-
fective date thereof, are eligible to be
placed on parole under the terms of this
act with the same force and effect as if
this act had been In operation at the
time of such person's becoming eligible
to be placed on parole.,"
It is onr opinion that this provlsion is con-
StltutiQnal. Although at the time of these prior con-
victims this parole law was not written into the pre-
scribed punishment, the Governor upon recommendationof
99
State Board of Pardons and Paroles, Page 19 (v-415)
the~Board of Pardons and Paroles has the payer, after
conviction,to grant pardons. Sec. 11, Art.,IV, Texas
Constitution. .UMer.thls authority the Governor has
heretofore granted conditionalpardons, which, in
fact, amounted to releasingunder parole~as provided
In this Act. As stated by the Courts, the Governor
has the power to grant a partial pardon and place
any conditionstherein that are not "illegal,im-
moral or incapable of performance." This Act pro-
vides IIIeffect that the parole granted by the Pardon
Board shall not be effectiveuntil approved by the
Governor. Therefore, In approvinga parole granted
to a person convictedbefore the effective date of
this Act, the Governor would be In fact exercising
his constitutional ower of executive clemency.
Woods v. State (KY.7 169 S. W. 558.
Section 31 pertains to fees paid to vari-
ous officers in criminal cases and provides that'the
placing of a defendant on probation shall be conslder-
ed a flnal dlsposltlonof the case. This Section is
plain, unambiguous,and constitutional. Section 32
pr&'id&s that the .Act shall not begconstrued to pre-
vent or limit the exercise.bythe Governor of the
p6irir'rs'of
executive clemency. This Section is plain,
unsmblgiuous,and constitutional. Section 33 provides
that this Act shall not apply to parole 'i'ram$nstl-
tutlons for Juveniles... This Section Is plain, unam-
blguous,.andconstitutional. Seatlon 34 repeazs the
old parole law and all laws or parts of laws-in con-
flict with the Act. It sp.eclflcally provides that.'
this Act shall not be cq&trued.as repealing Arts.
776 through 781 of Vernon's -Annbtat&d.Statutes,
Code of Criminal Procedure,which Is conrmonly.known
as the suspended sentence law. These provlslons are
valid. Section 35 of the Act provides that If any
section, paragraph,part, sentence, clause, or phrase
of the Act be held unconstltutlonal,that it shall
not affect the validity of the remalnder,.andde-
clares that the Legislaturewould have passed each
and every section, paragraph,,part,sqntence, clause,
and phrase of this Act severally. It Is oti opinion
that although, as pointed out above, several sections
or portions thereof are unconstitutional,the valid
portions remaining constitutea full end complete act
within Itself and should be administeredby those en-
trusted therewith.
.1,
=
L-. L&&l “::
State Board of Pardons and Paroles, Page 20 (V-4:5)
Section 36 deflnee'varlouswords andterms
used in the Act. We find nothing In these definitions
which ln any way conflictswith our Constltutlon;but,
on the contrary, the,definitlonsappear to be ln har-
mony therewith.
House Bill 120, '.0th Leglslature.(Pro-
batlon and Parole Law7'In granting power to
courts of record to place a convictedperson
on probation and in granting power to the
Board of Pardons and Paroles to release on
parole a'convlctedperson Is constitutional.
A parole is not,a reprieve or sny form or
executive clemency. County courts, corpora-
tion courts, e&justice courts do not have
the power, after conviction,to place the
defends& on'probatlon. Section 8 of said
Act creating a nomination committee to cer-,
tify to the appointing authorltlesthose ap-
pllc~ts~kho are ellggiblefor appointment.'~..
to'the Board of Pardons and Paroles is uncon-
stltutionalbecause it is in conflictwith
Sec. 11 of Art. IV of the Texas Constitution.
Section 20 of the Act, wherein it attempts to.
authorize the Board of Pardons and Paroles to
revoke paroles 1s unconstitutionalIn that it'
is In conflict with Sec. 11 of Art. IV of the
Texas Constitution,which provides that "The
Wizn$r shall have the:power to revoke pa-'
Unless and until the Governor re-
vokes-the parole, the parolee 1s~entitled
to serve hls"sentence outside the prison
walls. Each member of the Board of Pardons
snd Paroles is entitled to receive an annual
salary of $4,764.00 during the present blen-
nium. It is the duty.of the Board of Pardons
and Paroles to administer this Act insofar as
they ten with whatever funds are available to
them. The Board of Pardons and Paroles in
making recommendationsto the Governor for
executive clemency 1s not required to con-
sider the provisions of this~Act. Whenever
a court revokes a probation, the probationer
may'appeal the revocation to the Court ef '~'
CrlmlnaIAppeals. The determinationof.wheth-
er a sentence under a subsequentconviction
;I -’ to*
State Board of Pardonsand Paroles, Page 21 (v-415)";
shall be cumulativeor concurrent is a
judicial function,and that portion of
Sec. 20 of the Act attemptlngto confer
this power upon the Board of Pardons and
Paroles is unconstitutional. The Board
of Pardons does not have the power to dls-
charge a convictedperson who has been pa-
roled, before he has served the maxImum
term of his sentence,as such an act would
be a pardon; and this power has been vest-
ed solely in the Governor by the Constitu-
tion. Persons convictedbefore the effec-
tive date of this Act are eligible for
parole by virtue of .the.Governor's par-
doning power. Except as herein pointed
out, this Act is constitutional. Sec. 11,
Art. IV, Tex. Const.; Sec. ZlA, Art. IV,
Tex. Const.; Snodgrass v. State, 150 S.W.
162; Baker v. State, 158 S. W. 998; Rx
Parte Black, 59 S. W. (2d) 828.
Yours very truly
ATTORREYGERERALOFTEXAS
W. V. Geppert
Assistant
WVG/JCP
APPROVEII:
F*T+
ATTOREEYGEEERAL