dissenting.
The history of this state records that from its inception and until 1936, the pardoning power or power to extend clemency to convicts was exclusively in the hands of the Governor of this state. The people changed that power by amending their Constitution in 1936 (Art. IV, Sec. 'll [eleven]) so that the power to extend clemency to convicts was placed jointly with the Board of Pardons and Paroles and the Governor of this state. The power of the Governor in such matters was expressly limited. He was empowered “on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons.”
Under that limited authority, what do my brethren here hold? So that there may be no mistake, I quote their holding;
“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 Board of Pardons and Paroles but may not constitutionally grant a greater form.”
In other words, the Governor of this state can and has the power, of his own choosing, to grant to a convict clemency without the “signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof” so long as it is a lesser form of clemency than that recommended by the Board of Pardons and Paroles.
So then by the rule to which my brethren here commit themselves the Governor of this state may, of his own volition, extend clemency to convicts in this state without any recommendation of the Board of Pardons and Paroles — and this, in open violation of the Constitution of this state.
*62So my brethren say that they are committed to the rule that the greater includes the lesser form of clemency! In order to make that determination, then, there must be some guide by which it may be ascertained what a greater or lesser form of clemency is. If there be any such guide, rule, or statute whereby it may be ascertained which form of clemency is greater or lesser than another I do not know what it is or where to find it.
My brethren say that a conditional pardon is a greater form of clemency than commutation of punishment and that, for such reason, the Governor had no authority, here, to grant to relator a conditional pardon upon a recommendation for commutation of punishment by the Texas Board of Pardons and Paroles.
I do not know where my brethren get the idea that “The commutation recommended by the Board of Pardons and Paroles was a form of clemency greater than a conditional parole,” as set forth in the original opinion.
I am unable to find any authority for that statement. There is nothing in the conditional pardon, here, that shows that relator could ever become entitled to a full pardon or be relieved of the sentence imposed. The conditions upon which the pardon was issued were such that so long as relator complied therewith he was at liberty to remain out of prison. At no time would he, by the terms thereof, ever serve his sentence. For as long as he lived and obeyed the conditions imposed, he was never entitled to be fully released. If any pardon were ever to be given, it would be by a new and other act of clemency; it would not arise under the conditional pardon.
So then if my brethren be correct, a recommendation of the Texas Board of Pardons and Paroles for a conditional pardon could be rejected by the Governor and, after such rejection, the Governor could commute the punishment of his own volition because that form of clemency was less than that recommended by the Texas Board of Pardons and Paroles.
Then if the Governor has the power, of his own volition, to extend to convicts a lesser clemency than that recommended by the Board of Pardons and Paroles — as my brethren hold — he can grant any form of clemency he desires, because the constitutional limitation has been destroyed and is no longer in force and effect. If the limitation that the Constitution placed upon the granting of clemency no longer exists, I wonder where the Governor would get his authority to grant clemency of any na*63ture? The Constitution would give him no such power, because it no longer exists.
My brethren say that relator is subject to be confined either because Governor Daniel has revoked the clemency extended by Governor Shivers or because of the original conviction.
If the clemency extended by Governor Shivers was void, as my brethren hold, then there was no valid clemency for Governor Daniel to revoke. His order of revocation is therefore based upon a void proclamation which never existed.
I cannot conceive how a void, non-existent proclamation could be subject to revocation.
The revocation of the proclamation of Governor Shivers by Governor Daniel could not authorize relator’s arrest.
Relator was voluntarily released by the penitentiary authorities. He is not, then, an escaped convict from prison.
If relator was released upon a void proclamation, he is not to be blamed therefor. If the proclamation of Governor Shivers was void, as my brethren hold, because it was a conditional pardon, then to all intents and purposes of the law the recommendation of the Texas Board of Pardons and Paroles has never been acted upon. So far as this record is concerned, it is yet on the Governor’s desk.
I am unwilling to attribute to Governor Shivers the doing of an official act in total and absolute disregard and violation of the Constitution of this state. Governor Shivers knew that the Constitution of this state authorized the granting of clemency only upon the recommendation of the Board of Pardons and Paroles. He knew, also, that if he granted a conditional pardon when the Board of Pardons and Paroles had recommended only a commutation of sentence such act would be void. Surely Governor Shivers could not be said to have deliberately and openly violated the Constitution of this state.
When the proclamation of Governor Shivers is examined in the light of that knowledge, it is, to my mind, altogether reasonable and proper to say that when he issued the conditional pardon he was intending to carry out the recommendation of the Texas Board of Pardons and Paroles and to thereby grant to *64relator commutation of punishment. Such construction is in keeping with the presumption that when two constructions may be given to an order of an executive of this state, that which sustains will be employed over that which destroys. Such construction is also in keeping with fairness and justice. I am convinced that the proclamation of Governor Shivers should be treated as approving the recommendation of the Texas Board of Pardons and Paroles that relator’s punishment be commuted.
I hereby enter my further dissent.