ON STATE’S MOTION FOR REHEARING
CLINTON, Judge,dissenting.
After the Supreme Court of the United States reversed “in part” a judgment of this Court in a capital case, the Court deferred to a subsequent act of executive clemency that “reached the punishment before the judicial sequence did” and affirmed the judgment of conviction, citing only Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972). Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981).
When this Court first reversed a judgment of a trial court assessing the death penalty for “trial error” during the punishment stage, but then granted leave to file motions for rehearing, and contemporaneously an executive proclamation was issued purporting to commute punishment at death to life, the Court thought executive clemency rendered our judgment such that “imposition of the death penalty is no longer possible"1 and affirmed the judgment of conviction, after finding no error in the guilt-innocence stage of the trial; cited were Adams v. State, supra, along with two others similarly situated, and Whan v. State, supra. Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1982).2
In the cause before us now reversal first followed our discovery of “Witherspoon-Ad-ams” error in exclusion of a juror, so a remand for a new trial with the death penalty as possible punishment was in order. Once again leave was granted the State to file a motion for rehearing, and thereafter the Governor issued a proclamation which facially commuted punishment at death to life. Notwithstanding that “judicial sequence” reached the punishment before the Executive Department did, the opinion of the Court says, “In view of appellant’s life sentence following the commutation,” punishment errors are harmless. Then, drawing on language in Whan v. State, supra, the Court tells us, “When, as in the instant case, there is error in the guilt stage which affects the judgment, the commutation by the Governor, which relates to punishment only, is of no effect.” Thus, the Court at once allows a purported commutation order to supercede its own reversal for “Witherspoon-Adams” error, but seems to declare the order ineffective with respect to “trial errors” on guilt.
It is readily apparent that Whan is ubiquitous. In the company of a purported commutation proclamation, it is found blocking the possibility — often likelihood— of imposition of capital punishment by the Judicial Department. Now is the time and this is the right opportunity to reexamine Whan, and I submit we should, indeed must, do so. Otherwise, as I demonstrated in Adams, usurpation of judicial power and authority to assess punishment and impose a death sentence in a capital murder case will surely continue — at the discretion of the Executive Department. Nullification of the death penalty is a matter for the people through established processes of our representative democracy, not one of administrative fiat. But Whan allows the latter.
The central fallacy in Whan is reflected by the following language:
“[Article 42.07,3 V.A.G.C.P.] indicates that a pardon is valid even if granted before sentence is pronounced. The Governor’s authority to grant commutation arises *932from the same Article of the Constitution as does his authority to grant pardons. It follows that a commutation under the same circumstances would likewise be valid, the punishment having been assessed before sentence is pronounced, and therefore subject to commutation.” Id., at 277.
With deference, the conclusion of law reached does not follow from the premises expressed.
Let us suppose that after entry of judgment upon a jury’s finding of guilt and assessing punishment at a term of forty years the Executive Department issued a proclamation purporting to commute that punishment to a term of twenty years confinement, but the defendant resisted by insisting on posttrial rights. Whan, drawing on language from two earlier opinions of the Court,4 indicates that such commutation is valid since it is granted after “the verdict of guilty pronounced by a jury.” Yet, judgment adjudicating guilt and assessing punishment has not been rendered and entered by the trial court. Therefore, I suggest there is nothing to commute, and, similarly, though judgment be entered on the verdict.
Commutation is “an executive act reducing the term of a sentence already imposed and substituting a lesser for the greater punishment," 67A C.J.S. § 4, p. 7; Black’s Law Dictionary (Rev. Fourth Ed. 1968) 351. Thus, the constitutional term “after conviction” is of little moment with respect to commutation, for that kind of executive clemency simply may not attach “before conviction.” “Commutation is ... an act appropriate for reducing existing sentences 67A C.J.S. § 33b, p. 44.
On the other hand, unless otherwise restricted a pardon may be granted by proper authority at any time — even before a criminal charge has been lodged against the offender.5 67A C.J.S. § 12, p. 18. In Texas, however, when expressly limited, exercise of the power to pardon has always been restricted to “after conviction.”6 But that constitutional limitation is purely a reflection of a policy decision made by the people of Texas on the matter of timing valid exercise of the power to pardon.7 Rather than permitting the Executive Department to grant pardons before charge is made, before indictment is returned, before trial begins, before jury verdict, the Constitution restricts the grant to that point in the criminal prosecution which is “after conviction.” And there has never been any intimation that such restriction on timing is part of a definition of what constitutes a pardon.8
*933So, Whan is quite correct in perceiving that Article 42.07, V.A.C.C.P., “indicates that a pardon is valid even if granted before sentence.” That article provides — as its predecessors did back to the former Article 688 in the 1857 procedural code — one reason to prevent sentence is:
“1. That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.”
That reason obviously contemplates only a pardon in the classic sense, one which absolves from punishment and “whatever else the law has provided,” Carr v. State, supra, at 657, and the mandate of discharge clearly excludes operation of a commutation order. There is not the slightest suggestion in Article 42.07, or elsewhere, that receiving commutation is a reason the defendant may advance to prevent sentence.
Whan also observed that the authority bestowed on the Governor to grant commutations “arises from the same Article of the Constitution as does his authority to grant pardons.” But the observation, while absolutely accúrate, is pointless. As already shown ante, the constitutional provision is a matter of timing exercise of pardoning power, not a matter of defining the kinds of executive clemency mentioned in the section. Indeed, except for pardons the term “after conviction” is redundant for the other kinds, facially or by definition, necessarily require conviction and punishment.9
Neither reprieve, commutation, fine nor forfeiture precedes a finding of guilty or “conviction,” and the authority of the Governor to grant any of those kinds of clemency could have been provided effectively anywhere in Article IV — or anywhere in the Constitution — without the words “after conviction.”
Thus, the conclusion reached in Whan does not “follow” its premises. Furthermore, omitted from its analysis are pertinent factors that seem to have been overlooked.
The functional distinction between a pardon and commutation, along with other kinds of executive clemency, has been legislatively and administratively provided. In Article 42.12, § 25, V.A.C.C.P., the Legislature authorized the Board of Pardons and Paroles (Board) to “investigate and report to the Governor with respect to any person being considered by the Governor for ... commutation of sentence.” In turn, the Board, with another grant of authority to do so, id., at § 18, has adopted rules pertaining to its investigative and reporting functions in this respect, within the constraints of its own definition, viz:
‘“Commutation of sentence’ means an act of clemency by the governor which serves to modify the conditions of a sentence.” 10
Constitutionally and statutorily, the Governor may not commute (or pardon, for that *934matter) except on the written signed recommendation of the Board. Article IV, § 11, supra, and Article 48.01, V.A.C.C.P. By statute and its own rules the Board is authorized to make its recommendation for commutation of sentence only. It follows that assessed punishment is not subject to commutation in advance of sentence.
Finally, when Whan was decided Article 42.07, supra, also provided another reason to prevent sentence, towit:
“3. Where there has not been a motion for new trial or a motion in arrest of judgment made, the defendant may answer that he has good grounds for either or both of these motions and either or both may be immediately entered and disposed of...”
The effect of granting a new trial is obvious, but overlooked often is the consequence of the effect of arresting judgment provided in Article 41.05, V.A.C.C.P. The defendant is placed in the same position he was before the indictment was presented, but if the trial court is not satisfied from the evidence that he may be convicted again “the defendant shall be discharged.” To hold that a purported commutation may attach to punishment fixed in a judgment of the court that is still subject to being arrested and the accused discharged from all punishment would be such a deprivation of constitutional and statutory rights that the point need not be belabored. Yet, that is clear result of Whan's dictum that punishment having been assessed before sentence is pronounced “a commutation under the same circumstances [as a pardon] would likewise be valid.”
Today the Court finds that the judgment of conviction must be reversed on account of trial error, much as the trial court could have done on appellant’s motion for new trial, under Article 42.07 or regular procedure in Chapter Forty with its effect — “to place the cause in the same position in which it was before any trial had taken place,” Article 40.08, V.A.C.C.P. But whether the death penalty is still available, as it clearly was following reversal on original submission, is not revealed by the Court, and, either way, the Court should so state. With deference, a valid commutation order is effective for all its intended purposes, or for none. The Court has given it the effect of rendering harmless errors during punishment; but if it is not operative beyond that interference with the judicial process, then its intended purpose has not been achieved and granting it in the first place was a futile endeavor. To the extent that Whan and its progeny produce such curious consequences, they should be overruled. I am simply unable to subscribe to the proposition that a purported commutation of the punishment portion of a judgment that is to be reversed renders “imposition of the death ... penalty no longer possible.”
Accordingly, I dissent.
ONION, P.J., and TEAGUE, J., join.. All emphasis is mine unless otherwise indicated.
. Dissenting in Clark v. State, supra, I suggested it was “perplexing” that “the commutation order preempted further judicial proceedings in Adams, but in this cause is ‘suspended’ pending judicial decision...”
.In the allocution portion of a sentencing proceeding, the defendant may prevent imposition of sentence when he “has received a pardon from the proper authority” by presenting it, “legally authenticated,” to the court.
. For fair criticism of Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912) and identification of the point in Goss v. State, 107 Tex.Cr.R. 659, 298 S.W. 585 (1927), see my dissenting opinion in Clark v. State, supra.
. Grant of presidential clemency to Richard M. Nixon is a modem demonstration of the anticipatory nature of the power to pardon.
. Plan and Powers of the Provisional Government of Texas, Article VII, 3 Vernon’s Texas Constitution 513: “... and the penalties prescribed by said law, in case of conviction, shall be inflicted, unless the offender shall be pardoned, or fine remitted; for which purpose a reasonable time shall be allowed to every convict to make application to the Governor and Council.” Constitution of 1836, Article VI, § 4, id., at 529: “He shall have power to remit fines and forfeitures, and to grant reprieves and pardons...” Constitution of 1845, Article V, § 11, id., at 555: “... he shall have power, after conviction, to grant reprieves and pardons; and under such rules of the Legislature may prescribe, he shall have power to remit fines and forfeitures; accord: Constitution of 1861, Article V, § 11, id., at 584; Constitution of 1866, Article V, § 11, id., at 614; Constitution of 1869, Article IV, § 11 id., at 651; Constitution of 1876, Article IV, § 11, as originally adopted, id., at 798, which for the first time mentioned “commutations.”
. Camron v. State, 32 Tex.Cr.R. 180, 22 S.W. 682 (1893) presented a problem of refusal of the prosecuting attorney to honor an agreement whereby an accused would “turn state’s evidence against his confederate,” raised by him through a plea in bar when put to trial. Noting that in some jurisdictions when an accused has testified as agreed but the prosecutor refuses to recognize the agreement, the trial court “will continue the cause, to let the defendant obtain a pardon to plead in bar,” the Court found that practice inapposite in Texas “as the pardoning power can only be invoked after conviction. Const, art. 4, § 11.”
. Putting aside the several qualifiers often conditioning it, see Black’s Law Dictionary, supra, 1269, the meaning of pardon in this country came from “that nation whose language is our *933language, and to whose judicial institutions ours bear a close resemblance,” United States v. Wilson, 7 Peters 150, 160, 8 L.Ed. 640 (1833), viz:
“A pardon is an act of grace, proceeding from the power intrusted with the execution of the law, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.”
Early on, the view of Texas was similar, see Carr v. State, 19 Cr.R. 635, 357, 660, 663 (Ct.App.1885) and Bennett v. State, 24 Cr.R. 73, 5 S.W. 527, 529 (Ct.App.1887), and it still is.
. The second paragraph of Article IV, § 11 contains the operative bestowal of power “after conviction ... to grant reprieves and commutations of punishment and pardons ... and ... to remit fines and forfeitures.”
. Rules, § 141.111(.005). Rules and regulations promulgated by an administrative agency, acting within authority delegated to it by statute, are to be construed as statutes. Nacogdoches Savings and Loan Assn. v. Lewis, 531 S.W.2d 428, 430 (Tex.Civ.App.—Austin 1975) reversed on other grounds, 540 S.W.2d 313 (Tex.1976) pursuant to disposition of Lewis v. Jacksonville Building and Loan Assn., 540 S.W.2d 307 (Tex.1976), in which at 310, the Supreme Court confirmed: “Valid rules and regulations promulgated by an administrative agency acting within its statutory authority has the force and effect of legislation, [citations omitted] Administrative rules are ordinarily construed like statutes.” (Though the rule alluded to has been more recently promulgated under the Administrative Procedure and Texas Register Act, Article 6252-13a, V.A.C.S., the former regulations were the same in substance.)