                                  May 6. 1974



The Honorable William H. Skelton                      Opinion No.   H-   295
Chairman
Board of Pardons and Paroles                          Re:   The authority of the
Room 501 John H. Reagan Building                            Board of Pardons and
Austin,  Texas 78701                                        Paroles in regard to
                                                            prisoners  whose con-
                                                            victions ore still on
Dear       Mr.   Skelton:                                   appeal
       i
       You have asked our opinion on three questions       relating to the autho-
rity of the Board of Pardons and Paroles        to recommend    reprieves and
paroles of persons incarcerated    in a, facility of the Texas Department     of
Corrections   while their cases are being appealed.       Your first two questions
are:

                         1. “Does the Board of Pardons and Paroles have
                  the authority to recommend   tc the Goyvernor an Indefinite
                  Medical Reprieve or Emergency     Reprieve  for an inmate
                  confined in the Texas Department of Corrections   if the
                  inmate has a conviction on appeal?”

                         ~2. “Does the Board of Pardons and Paroles have
                  the authority to consider the case of an inmate confined
                  in the Texas Department     of Corrections for parole and
                  recommend     parole to the Governor when the inmate has
                  a conviction on appeal? ”

       Your inquiries are necessitated by recent amendments     to Articles
42.03 and 42.09,    Vernon’s Texas Code of Criminal Procedure,     which permit
the transfer of persons to the Texas Department   of Corrections   while their
appeals are pending.




                                        p.   1373
The Honorable    William   H. Skelton,        page 2    (H-295)




       The primary basis for the authority of the Board of Pardons and
Paroles is found in Article 4, $11, of the Texas Constitution which provides
in part:

                    “In all criminal casts,   except treason and
             impeachment,     the Governor shall have power, after
             conviction,   on the written signed recommendation
             and advice of the Board of Pardons and Paroles,        or
             a majority thereof,    to grant reprieves    and commuta-
             tions of punishment and pardons.      . . .‘I

       In Texas a felony conviction ordinarily is not considered          final until
after it has been affirmed by the Court of Criminal Appeals,            Pruett v. Texas,
470 F. 2d ,ll82 (5th Cir. 1973, en bane), aff’d mem.              u.s          38 L. Ed.
2d 39 (Oct.    9, 1973); however,     the term “after conviction” asused        in relation
to reprieves,    pardons and commutations       has been held to mean after a verdict
of guilty.   Whan v. State, 485 S. W. 2d 275 (Tex. Crim.          1972); Goss v. State,
298 S. W. 585 (Tex. Crim.       1927); Snodgrass   v. State, 150 S. W. 162 (Tex. Crim.
1912).   Under this reasoning it has been judicially       determined    that commuta-
tions may be granted before the completion          of the appellate process.      Stanley
v. State, 490 S.W.      2d 828 (Tex. Crim.    1973); Cherry v. State, 488 S. W. 2d
744 (Tex. Grim.      1973), cert. denied, 411 U.S. 909 (1973); Hall v. State, 488
S. W. 2d 94 (Tex. Crim.      1973); Whan v. State, %pra.        See, Snodgrass     v.State,
supra,   and Article 42.07,    Vernon’s    Texas Code of Criminal Procedure, for
language strongly indicating that the same rule applies to pardons.              We believe
the same conclusion      must be reached in respect to reprieves.          Paroles   are con-
ditional pardons,    Ex parte Lefors,     303 S. W. 2d 394 (Tex. Crim.       1957). and
would be governed     by the same    rule controlling     pardons.

       Therefore,  in answer to your first and second questions,        it is our opinion
that the Board of Pardons and Paroles has the authority to recommend             an inde-
finite medical reprieve,   an emergency    reprieve or a parole for a prisoner        whose
case is still being appealed.   Your third   question   is conditioned   on  a negative
answer to your second question;    and therefore,     it is unnecessary    for us to con-
sider it.




                                         p.    1374
.       I




    The Honorable   William   H.   Skelton,     page 3     (H-295)




                                         SUMMARY

                       The Board of Pardons and Paroles has the authority
                to recommend    a prisoner for an indefinite medical reprieve,
                an emergency    reprieve .or a parole even though the prison-
                er’s conviction has not yet been reviewed by the Court of
                Criminal Appeals.

                                              Very   truly yours,




                                              Attorney   General     of Texas

    APPROVED:




    DAVID M. KENDALL,         Chairman
    Opinion Committee




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