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Dr. George J. Beto                      Opinion No. MT97
Director
Texas Department of Corrections
Huntevllle, Texas                       Re:   Whether the Department of
                                              Corrections   may legally
                                              require the return of
                                              Robert Samuel Frank to
                                              serve the remainder of
                                              his sentence.

Dear Dr. Beto:
         You have requested     an opinion     of this   office   on the
following   facts:
         Inmate’Robert Samuel Franks .T.D.C!; #x26098, whose
parole was revoked onSeptember 16, 1963, under Proclamation
No’. 63-3379, Is currently being held by authorities    in the
State of New Jersey, and is refusing extradition     to Texas on
the grounds that he does not owe this State any remaining
time on his original   conviction.
       ‘The Inmate was originally    received In the TexasDe;
partment of Corrections    from Potter County on May 2, 1953,
to serve a lo-year   sentence for the offense of robbery.      Sen-
tence to begin on December 2, 1952.       After having been credi-
ted with 5 years, 7 months and 22 days on his original      sen-
tence, the Inmate, on June 7, 1956, was granted an out-of-
state conditional  pardon to the State of New Jersey by Procla-
mation No. 56-0860.
       Hy Proclamation No. 584210, dated February 7, 1958,
the Governor revoked Proclamation No. 56-0860 for violation
of the conditions  of parole.
         By Proclamation No, 61-3720, dated November 9, 1961,
the Governor granted another conditional   pardon to New Jersey
“with no credit for time served on prior conditional   pardon,
 . . . .    (Hmphasis supplied).


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Dr. George J. Beto,   Page 2 (M-97 )


         ProclamationNo.’   62-1115, dated April 16, 1962, re-
voked the conditional     pardon granted by Proclamation No.
61-3720,‘holding     same to be null and void and of no force
and effect.
        By Proclamation No. 62-3776, dated November 16,
1962; then Governor reinstated  the. conditionals pardon’ to Neti
Jersey, granted him”on November 9, 1961, under Proclamation
No. 61-3720, which was revoked’on April 16, 1962; under-
Proclamation No. 62-1115, and set aside said revocation.
     . By Proclamation No. 63-3379; dated Se tember 13,
1963, the Governor revoked Proclamation No. %l-3720 and
ordered the Inmate be taken into custody and delivered  to
the authorities  of the Texas Department of Corrections to
serve the remainder of his sentence.
        By the terms of Proclamation No, 61-3720, dated
November 9, 1961, Rob~ert Samuel Frank was denied credit
for time served on prior conditional      pardon dated June 7,
1956 (No. 56-0860). On June 7, 1956, when he was granted
his first   out-of-state   conditional  pardon, he had been
credited with 5 years, 7 months and 22 days on his original
sentence.    Under the terms of Proclamation No. 61-3720, he
was not credited,for     the time served from June 7, 1956 to
November 9, 1961, a total of 5 years, 5 months and 2 days.
Although the Proclamation No. 62-1115 revoked Proclamation
No. 61-3720 and held same to be null and void, nevertheless,
Proclamation No. 62-3776 reinstated      Proclamation No. 61-
3720 fully,   thereby denying the Inmate credit for time
served on parole between June 7, 1956 and November 9, 1961.
         The Governor has the right to issue conditional    par-
dons and extending them on such conditions     as deemed by him
to be advisable,   and when such clemency Is accepted by the
prisoner,   he becomes bound by such conditions,    and upon
determination   by the Governor that the prisoner has failed
to fulfill   the conditions   of the clemency proclamation,
the Governor is authorized to revoke such clemency, and the
prisoner is not entitled     to credit on his sentence for the
time he is at large.      Ex Parte Bryant, 230 S.w.2d 824 (Tex.
Crlm. 1950).
        Each of the proclamations   of the Governor granting
a conditional  pardon were conditioned   as follows:


                        - 441 -
Dr. George J. Beto,   Page, 3 (M-97,)


                   If, however, he is guilty at any
       time'of   any misconduct or violation      of the
       law or fails to comply in any way with the
       terms hereof or for any other reason the
       Governor'may deem~suffjcient      (including   any
       facts not known to the Governor at the time
       of this clemency) this pardon shall be and
       is subject, to revocatfon    at the Governor's
       discretion,    with or without hearing, as the
       Governor may determine, and upon revocation
       by the Governor of this pardon, the same
       shall become and-,be null and void and of no
       force and effect,    and the Subject shall be,
       by order of the Governor, returned to and
       confined in the Penitentiary     to serve the
       sentence originally    imposed upon him or so
       much thereof as had not been served by the
       Subject at the time of his release under
       the terms of this or any previous clemency
       and the time during which the Subject is at
       large under this or any previous clemency
       shall not be considered or credited to the
       Subject as time served on his original        sen-
       tence."
Also, each proclamation    of the Governor, revoking the
conditional  pardon recited that he would receive no
credit on his sentence for the time he was at large un-
der the conditional   pardon.
         Under the facts presented, it is the opinion of
this office   that Robert Samuel Frank must serve the re-
maining 4 years, 4 months and 8 days on his original   con-
viction.
        The authorities   attached to your letter,    touching
the right to revoke probation during the probationary
period, have no application     and are not controlling    where
the probationary   period has not terminated.
         The Court of Criminal Appeals in Ex Parte Cochran,
253 S.W.2d 443 (195~2)~ held that where a reprfeve granted
reiator provided that; upon violation      of stated conditions,
time out of prison did not count as time served on a 25-
year sentence,   and thereafter   a pardon was granted upon
conditions   of relator's  previous clemency, the pardon was
but a renewal of the original     contract by the relator and

                         - 442 -
Dr. George      J. Beto,   Page 4 (M-97 )


the Governorand,  therefore;’ time during which relator was
at large before the pardon was revoked would not be credited
to’time served on the sentence upon violation  of the condi-
tions of parole.
                             SUMMARY
                Under the facts stated, the Governor’s
            revocation  in Proclamation No.‘6313379 is
            valid a8 the probationary   period had not
            ternlnated,  and the Department of Correc-
            tions may legally   require the return of
            Robert Saauel Frank to serve the remainder
            of his eentence.
                                            truly     yours,

                                               L?J7 Lz=--
                                               C. MARTIN
                                                    General of Texas
Prepared by Gilbert J. Pena
A8siStant Attorney General
GJP/dt
APPROVED:
OPINIONCOMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Robert E. Owen
Sam Kelley
Pat Bailey
Harold Kennedy
A. J. Carubbi, Jr.
Staff Legal Assistant




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