dissenting.
The Board of Pardons and Paroles recommended to .the Governor that the relator’s" sentence be commuted to the time served.
' If that recommendation was approved by the Governor, the relator was released from custody. " '
■ It was within the power of the Texas Board of Pardons and and Paroles to make that recommendation of commutation of sentence. Art. IV, Sec. 11 (eleven), Const.
It was within the power of the Governor of this state' to do *57one of two things: He could either accept the recommendation or reject it. He was without authority to substitute another or different form of clemency for that recommended by the board. Any effort on his part to do so would be void, for want of authority. Id.
It follows, therefore, that the conditional pardon for relator which the Governor issued was absolutely void, as such, because it had not been first recommended by the Texas Board of Pardons and Paroles. The conditional pardon was not issued by the Governor upon the recommendation of the Texas Board of Pardons and Paroles.
Whatever effect be given to the Governor’s proclamation, relator was released from custody.
To my mind, it is clear that in the issuance of his proclamation the Governor was following, accepting, and attempting to carry out and put into effect the recommendation of the Texas Board of Pardons and Paroles. Such being true, the proclamation of the Governor should be given the effect of and construed as awarding to the relator the commutation of sentence which had been recommended. It is only by so construing the proclamation that any effect, whatsoever, can be ascribed thereto.
When that construction is given to the Governor’s proclamation, it shows a valid exercise by the Governor of this state of a power expressly conferred upon him by the Constitution.
On the other hand, if the proclamation of the Governor be strictly construed as the granting of a conditional pardon, only, and not a commutation of sentence, then we have the Governor entering a proclamation that was absolutely void and issued not with constitutional authority but in total disregard thereof.
So then we have, here, a proclamation by the Governor that is susceptible of two constructions: One will give validity, force, and effect to that instrument; the other will render it void, as evidencing upon usurpation of power and authority by the Governor of this state.
It has always been a rule of statutory construction that if a statute be susceptible of two constructions, one of which will render it valid and the other will nullify it, that which sustains will prevail — which means that all doubt will be resolved in *58favor of the validity of the statute. 39 Texas Jur., Statutes, Sec. Ill, p. 206.
If such rule be proper in construing an act of the legislature, why would not the same also be true in interpreting an act of the chief executive of this state? I submit that it would.
But, in total disregard of that rule, my brethren follow the very opposite course, here. They adopt the construction that destroys and nullifies the Governor’s proclamation, rather than accept that which renders the proclamation valid.
The proclamation of the Governor should be given the construction of being an acceptance on his part of the recommendation of the Board of Pardons and Paroles.
My brethren devote much time to a discussion of the conditional pardon and to the conditions upon which it was issued.
I cannot help wondering how a wholly and totally void instrument can be relied upon to fix the rights of this relator. Yet that is what my brethren here do.
Any justice of the peace in this state would have as much authority to issue a conditional pardon to relator as did the Governor of this state under this record •— which is absolutely none. The Governor does not have the power and the authority to issue or grant a conditional pardon of his own volition or election. He can only do so when the Board of Pardons and Paroles so recommends.
No such recommendation here appears and, so far as this record is concerned, none has ever been made by the board.
Then why so much consideration of the instrument representing a wholly void act?
The situation demonstrates that what the Governor intended to do was to grant the recommendation of the board.
The Governor ought not to be cast in the position of having openly defied the Constitution of this state in doing and promulgating that which he had no authority to do, when all the facts show that such was not his intention. Yet that is the situation in which he finds himself, under the holding of my brethren.
If the construction and interpretation which my brethren *59give to the Governor’s proclamation be correct, then the relator is at liberty and free from confinement in the penitentiary under a void proclamation.
Relator cannot violate the terms of a void order, because no order existed. By what authority, then, is he to be retaken into custody? Certainly he has not escaped from the penitentiary; he was voluntarily liberated from that institution by those in charge. By what authority, then, is he to be returned to the penitentiary, and who issued the warrant for his arrest?
The answers to these questions all point to but one conclusion, that is that relator was given his release from custody when the Governor granted the recommendation of the Texas Board of Pardons and Paroles to commute his sentence.
It is apparent, therefore, that there exists, now, no legal sentence against the relator.
It occurs to me, finally, that where the acts, conduct, orders, proclamations, and decrees of these executive or administrative officers, acting within the scope or apparent scope of their authority, are susceptible of two constructions — one favorable to the convict and the other unfavorable — the presumption of innocence which follows all defendants demands and requires that the construction favorable to the accuseds be followed.
Such a disposition strongly appeals to me as making the right prevail and the due administration of justice and equity "an actuality.
The relator has been given clemency by the authorities of this state having the power to so do. He should not be further punished by confinement in the penitentiary.
My dissent is hereby entered.