ON MOTION FOE REHEARING
MORRISON, Presiding Judge.In a studious and forceful motion, appellant’s counsel interprets our original opinion as holding that the clemency granted by the Governor was a lesser form of clemency than was recommended by the Texas Board of Pardons and Paroles. He points to the fact that, taken on its face, the document signed by the *60Governor was a conditional pardon and asserts that a conditional pardon is' a greater form of clemency than a commutation because the convict, once he has performed the conditions, is restored to the full privileges of citizenship, while a convict whose sentence has been commuted is in the same position as any other ex-convict who has served his full term.
The majority are committed to the rule that the greater includes the lesser and a Governor may grant a lesser included form of clemency than recommended by the Texas Board of Pardons and Paroles but may not constitutionally grant a greater form.
We are at a loss to determine how relator might be afforded relief in the face of such rule.
The sole question we must decide in this proceedings is whether relator’s confinement is lawful.' He is now confined by either of the following:
1. The proclamation of Governor Daniel revoking the clemency extended to him by Governor Shivers, or
2. The original judgment of conviction.
If the clemency granted the relator by Governor Shivers was a conditional pardon which was a greater form of clemency than recommended by the Board, then the act of Governor Shivers was void, and relator should never have been released originally. If this be so, then he is legally confined by virtue of the original judgment of conviction.
The only possibility of granting relief to relator lies in this court holding that Governor Shivers commuted relator’s sentence to time served. The proclamation shows on its face that it was not a commutation of sentence. Relator’s counsel aptly demonstrates the legal question here presented: Suppose the Board of Pardons recommends that an inmate in the penitentiary be released on furlough or parole for a period of six months. Is the Governor authorized upon such recommendation to issue his proclamation granting such convict a furlough or parole for three months?
We hold that such a proclamation would be within the recommendation of the Board and would be within the power vested in the Governor under Article IV, Section 11 of the Constitution
*61We further hold that such a proclamation could not be construed as' granting ■ such furlough or parole for the full six months as recommended by the board, for- to so construe the proclamation would be to hold that the pardoning power is vested in the Board of Pardons and Paroles, and not in the Governor upon the recommendation of the Board.
Remaining convinced that relator’s confinement is not unlawful, the motion for rehearing is overruled.