In his motion for rehearing one of relator's able counsel insists that in our main opinion we misconstrued our State Constitution. We have no doubt of the correctness of our interpretation. Indeed, as we understand it, our State Constitution, wherein it deals with impeachment, will bear no other construction than the one given it in our main opinion. The motion therefore will be overruled.
The provisions of our Constitution which deal with impeachment and with pardons positively exempt impeachment from pardon. Provision is made for impeachment by the Legislature. In Article 15 it is provided that the House of Representatives may prefer charges of impeachment, and the Senate, sitting as a court of impeachment, may try the charges and enter judgment thereon, and their judgment may extend to removal from office and disqualification from thereafter holding office. Article 4, Section 11, in part provides that:
"In all criminal cases, except treason and impeachment, he (the Governor) shall have power, after conviction, to grant reprieves, commutations of punishment, and pardons; and, under such rules as the legislature may prescribe, he shall have power to remit fines and forfeitures. With the advice and consent of the senate, he may grant pardons in cases of treason."
This Article thus empowers the Governor to pardon after conviction all criminal offenses except impeachment andtreason, and in the same connection provides for pardon for treason with the advice and consent of the Senate. Exemption of pardon for impeachment was expressly retained. The subjects of impeachment and treason were thus expressly dealt with by the people in convention assembled, along with and in connection with the powers granted to the Legislative and Executive Departments of government over these particular subjects. Expressly stipulating the authority and powers these two departments of government may exercise over impeachment and over treason, and expressly excepting impeachment from pardon, the exclusion is conclusive on these departments.
Treason may be punished by death, imprisonment, or such other punishment as may be provided by law. Therefore, a possible and ultimate pardon was provided for it. The Constitution provided that the judgment for impeachment should extend only to removal from office and disqualification from holding office in Texas, and that any violation of the criminal laws of the State may be prosecuted *Page 301 and punished in the criminal courts as other offenses. Convictions under the criminal laws would be pardonable as other offenses after conviction, but impeachment with consequent removal from office and disqualification to hold office was specifically excepted from pardon. The purpose of impeachment was not primarily one of punishment, but a protection to the public, an established public policy fixed in the Constitution. This does not convict the State of being "most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with mercy."
That under the American system of government no pardon is provided in cases of impeachment is held to be the general rule. In 20 Ruling Case Law, Sec. 17, pp. 535, 536, the principle is announced in the following language:
"In this country, however, it is generally held that the pardoning power does not extend to the relief of defendants from judgments rendered in impeachment proceedings. This power is expressly excluded in the grant of power upon the subject of pardons in practically all of the constitutions, not excepting the United States constitution. The provision in our constitutions excepting cases of impeachment out of the power of the executive to pardon was evidently taken from the English statute, and is an improvement on it. The reason for the difference between the English and the American practice in this regard may be found in the difference between the punishment there and here. In England, the judgment on impeachments is not confined to mere removal from office, but extends to the whole punishment attached by law to the offense. The House of Lords, therefore, on a conviction, may, by its sentence, inflict capital punishment; or perpetual banishment; or forfeiture of goods and lands; or fine and ransom; or imprisonment, as well as removal from office, and incapacity to hold office, according to the nature and aggravation of the offense. As the judgment on a conviction in this country extends no farther than to a removal from office, and disqualification to hold office, there is not the same reason for its exercise after the conviction as there is in England."
See also Story on the Constitution, (5th ed.) Vol. 2, Secs. 1501, 1502.
Able counsel insist that a pardon for every offense must reside in one of the three departments of government, but in argument admit that the Constitution in other instances provides that no pardon shall be had. *Page 302
Article 16, Section 4, provides that any one who assistsin any manner in the fighting of a duel, or in arrangements therefor, shall not hold office in Texas.
Article 16, Section 5, provides that one who secures his appointment or election to an office by bribery shall never thereafter hold office in Texas.
Other provisions provide that members of Congress of the United States, that soldiers and sailors, and others, may not hold office in Texas.
The disqualification to hold office in Texas by one who has been impeached is in keeping with the governmental policy of this and the other States of the United States.
The motion is overruled.
Opinion delivered May 26, 1930.