              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                          NO. PD-0283-16

                ROGER DALE VANDYKE, Appellant

                                  v.

                       THE STATE OF TEXAS

   ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
           FROM THE NINTH COURT OF APPEALS
                  MONTGOMERY COUNTY

      N EWELL, J., delivered the opinion of the Court in which
K ELLER, PJ., H ERVEY, A LCALA, R ICHARDSON, K EEL AND W ALKER, JJ.,
joined. Y EARY, J., filed a dissenting opinion in which K EASLER, J.,
joined.

     In 2015 our Legislature passed Senate Bill 746, a bill that amended

several provisions within the Civil Commitment of Sexually Violent

Predators Act contained within the Health and Safety Code.          The

amendments removed a provision that had made it a criminal offense for

a sexually violent predator who had been civilly committed to fail to

comply with the terms of his sex offender treatment. Furthermore, the
                                                                             VanDyke – 2
Legislature included a savings clause in S.B. 746 that made the legislation

apply to anyone who had been convicted of the offense of violating the

terms of his civil commitment and whose direct appeal of that criminal

conviction was pending at the time the legislation became effective.1

When Governor Abbott signed S.B. 746 into law, it became effective

immediately.       Appellant’s direct appeal of his criminal conviction for

violating the terms of his civil commitment was pending at that time.

       After S.B. 746 became effective, Appellant filed a supplemental brief

with the court of appeals arguing that his conviction was not a final

conviction and it should, therefore, be reversed because the amendment

to Section 841.085 decriminalized his conduct. The State agreed that

this savings clause applies to Appellant because the statute became

effective when Appellant’s conviction was not yet final due to the

pendency of his case on appeal.              However, the State argued that the

savings clause in S.B. 746 violated the Separation of Powers Clause of the

Texas Constitution because it usurped the governor’s power to grant




       1
         W hen the House voted on the final version of S.B. 746, only three representatives
voted against the bill. H.J. of Tex., 84th Leg., R.S. 3689 (2015) (floor vote on S.B. 746).
W hen the Senate voted on the final version of S.B. 746, no one voted against the bill. S.J.
of Tex., 84 Leg., R.S. 1817 (2015) (floor vote on S.B. 746).
                                                                                VanDyke – 3
clemency.2 The court of appeals affirmed his conviction, holding that the

savings clause in S.B. 746 violates the Separation of Powers Clause of the

Texas Constitution.          We granted Appellant’s petition for discretionary

review on the sole issue of whether the Court of Appeals erred in holding

that the savings clause in S.B. 746 usurped the governor’s clemency

power. We reverse and vacate the judgment.

                                     I. Case History

       This case presents a constitutional question regarding the powers

of the Executive and Legislative branches of our government.                                The

underlying facts of the case are not determinative; however the time line

of events in this case is important.                In January 2011, the trial court

determined that Appellant was a sexually violent predator, as defined in

Texas Health and Safety Code § 841.003,3 and civilly committed him in

accordance with Texas Health and Safety Code § 841.081.4 The court


       2
          The State m akes no argum ent that the savings clause in S.B. 746 violates the
Separation of Powers Clause of the Texas Constitution by unduly interfering with a court’s
power to enter a final judgm ent. See Ex parte Lo, 424 S.W .3d 10, 29 (Tex. Crim . App.
2014) (op. on reh’g) (“Entering a final judgm ent is a core judicial power; it falls within that
realm of judicial proceedings ‘so vital to the efficient functioning of a court as to be beyond
legislative power.’”).

       3
        Health & Safety Code § 841.003(a) provides: “A person is a sexually violent
predator for the purposes of this chapter if the person: (1) is a repeat sexually violent
offender; and (2) suffers from a behavioral abnorm ality that m akes the person likely to
engage in a predatory act of sexual violence.”

       4
        Health & Safety Code § 841.081 provides: “If at a trial conducted under Subchapter
D the judge or jury determ ines that the person is a sexually violent predator, the judge shall
                                                                              VanDyke – 4
ordered Appellant to comply with the provisions of Health and Safety

Code § 841.082, the Agreed Final Judgment, and the Order of

Commitment.

       At the time of the offense, Health and Safety Code § 841.082(a)(4)

required Appellant to participate in and comply with a course of treatment

provided by the Office of Violent Sexual Offender Management (OVSOM).

Between July 17, 2011, and March 21, 2013, Appellant failed to make

progress in the treatment and violated several rules and requirements of

his treatment program.            On March 21, 2013, the OVSOM discharged

Appellant from the Outpatient Sexually Violent Predator Treatment

Program due to his unsuccessful progress in treatment. His discharge

constituted a failure to comply with his course of treatment, as required

by the then existing version of Health and Safety Code § 841.082(a)(4).

       In June 2013, a grand jury indicted Appellant for violating Health

and Safety Code § 841.082(a)(4). The State predicated the indictment

on Health and Safety Code § 841.085(a), which, at the time, permitted

prosecution for any violation of Health and Safety Code § 841.082(a).

Appellant filed a pre-trial writ of habeas corpus and motion to quash and

dismiss, arguing that the relevant Health and Safety Code provisions were


com m it the person for treatm ent and supervision to be coordinated by the office.”
                                                                                 VanDyke – 5
unconstitutional.5 The trial court denied the writ of habeas corpus and

motion.        On March 20, 2014, Appellant pleaded guilty to the offense

charged and true to the enhancement paragraphs; the court assessed

punishment at imprisonment for twenty-five years. Appellant filed an

appeal with the Ninth Court of Appeals on March 17, 2015, raising the

same arguments he made in his pre-trial writ of habeas corpus and

motion.

       While Appellant’s appeal was pending, S.B. 746 was introduced in

the Legislature. The bill proposed amendments to the Civil Commitment

of Sexually Violent Predators Act contained within the Health and Safety

Code. The amendments were designed to address “the growing crisis of

the civil commitment of sexually violent predators program that could

result in a major threat to the public safety in Texas.”6 Specifically, the

Legislature was concerned with mismanagement of the OVSOM which had

led to financial strain on the civil commitment program and threats by the


       5
          Appellant argued that the Health and Safety Code provisions unconstitutionally
delegated unlim ited authority to the OVSOM and unconditional authority to the trial court;
that the provisions were vague and overbroad on their face; that OVSOM was not perm itted
to discharge Appellant from the program and prosecution for OVSOM’s decision to discharge
him is an ultra vires act violating his due process rights; Section 841.085 is an
unconstitutional strict liability crim e; Appellant’s civil com m itm ent order im poses m ore
restrictive standards than perm issible by law; Section 841.142 facially violates the first
am endm ent; and the provisions violate the first am endm ent’s overbreadth doctrine.

       6
           Senate Com m . on Crim . Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S.
(2015).
                                                             VanDyke – 6
vendors who housed civilly committed sexual violent predators that they

would no longer house them.7

     To address this crisis, the amendments transferred authority over

the civil commitment program to the Texas Civil Commitment Office.8

The amendments also created a structure for the civil commitment

program by implementing a tiered program and guidelines dictating how

sexually violent predators would move through the tiers.9 Based on the

guidelines, sexually violent predators could move from a higher level of

restriction to a lower level of restriction, or vice versa, based on their

behavior and performance.10

     In conjunction with the tiered system to better monitor sexually

violent predators throughout their civil commitment, the amendments

also removed the failure to participate in and comply with the proscribed

sex offender treatment program from the list of criminal offenses sexually

violent predators are subject to under Health and Safety Code § 841.085.

In effect, the Legislature made the difficult policy determination that the



     7
         Id.

     8
         Id.

     9
         Id.

     10
          Id.
                                                                               VanDyke – 7
new tiered program would be better suited than criminal prosecution to

address lack of participation in and compliance with sex offender

treatment by those who had been civilly committed. In addition, S.B.

746 contained a savings provision instructing that the amendments were

to apply to offenses “committed before, on, or after the amendment’s

effective date, except that a final conviction for an offense under that

section that exists on the effective date of this Act remains unaffected by

this Act.”11 Due to the stated important public safety concerns associated

with S.B. 746, the Legislature and Governor Abbott determined that the

amendments should be implemented as soon as the bill was signed by

Governor Abbott. Governor Abbott signed S.B. 746 on June 17, 2015,

and the amendments immediately became effective. This occurred while

Appellant’s case was pending on appeal and before his conviction became

final.

         After S.B. 746 became effective, Appellant filed a supplemental brief

with the Court of Appeals, arguing that the amended Health and Safety

Code § 841.085 applied to his case because his appeal was pending as of

June 17, 2015, so his conviction was not final.                             Further, if the



         11
              Act of May 21, 2015, 84th Leg., R.S., ch. 845, 41, 2015 Tex. Gen. Laws 2700,
2711.
                                                                             VanDyke – 8
amendments applied to him then his conviction should be reversed

because his conduct no longer constituted a criminal offense. The Court

of Appeals held that the amended sections of the Health and Safety Code

did apply to the Appellant because he did not have a “final conviction” as

defined by this Court.12           However, the Court affirmed his conviction

holding that the application of the amended Section 841.085 to pending

convictions usurps the governor’s clemency power and thus violates

Article II, sec. 1 of the Texas Constitution, the Separation of Powers

Clause.13

                                       II. Analysis

       Before addressing the contested issue in this case, we address

preliminary issues which the State and Appellant, and this Court, after

independent examination, agree on.14 In asserting that the amendments

decriminalize Appellant’s conduct, both parties rely on the plain language

of the amendments. Health and Safety Code §§ 841.082 and 841.085

were amended as follows:

       SECTION 13. Section 841.082(a)


       12
            VanDyke v. State, 485 S.W .3d 507, 510 (Tex. App.— Beaum ont 2015).

       13
            Id. at 511.

       14
         See Saldano v. State, 70 S.W .3d 873, 891 (Tex. Crim . App. 2002) (despite
agreem ent by the parties, we nonetheless independently exam ine the m erits of claim s).
                                                   VanDyke – 9


(a) Before entering an order directing a person's [outpatient]
civil commitment, the judge shall impose on the person
requirements necessary to ensure the person's compliance
with treatment and supervision and to protect the community.
The requirements shall include:


(1) requiring the person to reside where instructed [in a Texas
residential facility under contract with the office or at another
location or facility approved] by the office;


(2) prohibiting the person's contact with a victim [or potential
victim] of the person;


(3) [prohibiting the person's possession or use of alcohol,
inhalants, or a controlled substance;


[(4)] requiring the person's participation in and compliance
with the sex offender treatment program [a specific course of
treatment] provided by the office and compliance with all
written requirements imposed by the [case manager or
otherwise by the] office;


(4) [(5)] requiring the person to:


(A) submit to tracking under a particular type of tracking
service and to any other appropriate supervision; and


(B) refrain from tampering with, altering, modifying,
obstructing, or manipulating the tracking equipment; and


(5) [(6)] prohibiting the person from [changing the person's
residence without prior authorization from the judge and
from] leaving the state without [that] prior authorization from
                                                                         VanDyke – 10
                the office


                [; [(7) if determined appropriate by the judge, establishing a
                child safety zone in the same manner as a child safety zone is
                established by a judge under Section 13B, Article 42.12, Code
                of Criminal Procedure, and requiring the person to comply
                with requirements related to the safety zone; and


                [(8) any other requirements determined necessary by the
                judge].


       SECTION 19. Section 841.085(a)


                (a) A person commits an offense if, after having been
                adjudicated and civilly committed as a sexually violent
                predator under this chapter, the person violates a civil
                com m itm ent  requirem ent      im posed     under Section
                                                           15
                841.082(a)(1), (2), (4), or (5) [841.082].


       The State convicted Appellant of violating the former version of

Section 841.082(a)(4), which at the time required Appellant to participate

in and comply with the treatment program provided by the OVSOM and

to comply with all written requirements imposed by the OVSOM.16 At the

time of Appellant’s conviction, Section 841.085(a) made it a crime for

Appellant to violate this statutory subsection.                When the Legislature



       15
            Senate Bill 746, 84th Leg., R.S. (2015).

      16
        The 2015 am endm ents redesignated Section 841.082(a)(4) as subsection
841.082(a)(3), but the am endm ents did not change the substance of the provision.
                                                                            VanDyke – 11
amended           Section     841.082      it   redesignated       this    subsection   as

841.082(a)(3).          Under the current version of Section 841.085(a), the

failure to participate in and comply with the treatment program provided

by the Texas Civil Commitment Office is a violation of subsection

841.082(a)(3) but no longer subjects the violator to criminal prosecution.

Additionally, S.B. 746 contained a savings clause which prohibits future

prosecutions based on the failure to comply with a treatment program.


       When we interpret statutes, our duty is to determine and give effect

to the apparent intent of the legislators who voted on it.17 In determining

the legislative intent, we focus our attention on the text of the statute

and how ordinary legislators would have understood the text.18 We are

not empowered to substitute what we believe is right or fair for what the

Legislature has written, even if the statute seems unwise or unfair.19

“[J]udicial intervention is generally unwarranted no matter how unwisely

we may think a political branch has acted.”20                   If we only defer to the

legislature when we agree with their policy determinations then we are


       17
            W hitehead v. State, 273 S.W .3d 285, 288 (Tex. Crim . App. 2008).

       18
            Id.

       19
         Tam ez v. State, 11 S.W .3d 198, 203 (Tex. Crim . App. 2000) (Keller, J.,
dissenting); see also Parnham v. Hughes, 441 U.S. 347 (1979).

       20
            Vance v. Bradley, 440 U.S. 93, 97 (1979).
                                                                              VanDyke – 12
not deferring to the legislature at all.


       Here, the Legislature not only removed Appellant’s conduct from the

list of criminally punishable violations, but it also prevented future

prosecutions for similar conduct.              Viewing Section 841 in its entirety,

along with the savings clause, the plain language demonstrates an intent

to decriminalize this type of conduct.                 Therefore, we agree with the

parties and the court of appeals that the amended sections of the Health

and Safety Code decriminalized the failure to participate in and comply

with a civil commitment treatment program.21


       Appellant and the State also agree that, under the savings provision

included with the passage of S.B. 746, the amendments apply to

Appellant. The savings provision provides:

       The change in law made by this Act in amending Section


       21
            W e do note that the Legislature’s actions did not absolve sexually violent predators
from all requirem ents of their civil com m itm ent. Though they cannot be convicted for failing
to com ply with or com plete their treatm ent program , sexually violent predators retain their
status as such until a court determ ines that their behavioral abnorm alities have changed to
the extent that they are no longer likely to engage in a predatory act of sexual violence.
T EX . H EALTH & S AFETY C O DE A NN . § 841.121(a) (W est Supp. 2015). They rem ain subject to
the Texas Civil Com m itm ent Office’s tiered program of treatm ent and supervision, which
m ust include a tracking service, until a court determ ines they are no longer a sexually
violent predator. Id. at §§ 841.083(a), 841.121(a). Under the tiered treatm ent program ,
the office m ay enforce disciplinary action for violations of the program ’s regulations and
return a com m itted person to m ore restrictive settings, i.e. m ore restrictive housing and
supervision, if deem ed necessary by the person’s behavior or progress to further treatm ent
and protect the com m unity. Id. at § 841.0834(c). Additionally, sexually violent predators
are still subject to crim inal punishm ent for violations of the other provisions in Health and
Safety Code § 841.082(a).
                                                                              VanDyke – 13
        841.085, Health and Safety Code, applies to an offense
        committed before, on, or after the effective date of this Act
        [June 17, 2015], except that a final conviction for an offense
        under that section that exists on the effective date of this Act
        remains unaffected by this Act.22

We have repeatedly held that a judgment of conviction is not final while

the conviction is on appeal.23              Appellant’s conviction was pending on

appeal as of June 17, 2015, and as such, was not a final conviction as of

the effective date of the amendments for purposes of the applicability of

the statute.24 The court of appeals properly held that the amendments

to Section 841.085 apply to Appellant.                          Having found that the

amendments to the Health and Safety Code decriminalize Appellant’s



        22
             Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 41, 2015 Tex. Gen. Laws 2700,
2711.

        23
         Lundgren v. State, 434 S.W .3d 594, 598 (Tex. Crim . App. 2014) (citing Milburn v.
State, 201 S.W .3d 749, 752 (Tex. Crim . App. 2006)).

        24
           To be clear, we decide here that Appellant’s conviction is not a “final conviction” for
purposes of determ ining the applicability of the statute at issue. Under well-established law
it isn’t. See Jones v. State, 711 S.W .2d 634, 636 (Tex. Crim . App. 1986) (“The law is
settled that a conviction from which an appeal has been taken is not considered to be a final
conviction until the conviction is affirm ed by the appellate court and that court’s m andate of
affirm ance becom es final.”). However, this aspect of our holding should not be m istaken as
a suggestion that we are holding that the governor’s clem ency power only attaches after a
m andate issues after a direct appeal. Indeed, the law is well-settled in that regard; the
governor’s clem ency power applies at any point “after conviction” regardless of whether
m andate has issued on direct appeal. Ex parte Giles, 502 S.W .2d 774, 784 (Tex. Crim . App.
1973). Rather, our holding is that even though the clem ency power can apply to a case
before the conviction becom es final on appeal, this legislative am endm ent does not usurp or
unduly interfere with that clem ency power because it is a valid exercise of the Legislature’s
authority to m ake or repeal laws rather than the fundam ental equivalent of a pardon. Of
course, case law in both inquiries necessarily refer to the word “conviction.” But
determ ining whether the phrase “final conviction” applies to a case pending on appeal and
whether clem ency power applies “after conviction” are two separate and unrelated issues.
                                                                             VanDyke – 14
conduct and that the amendments apply to Appellant, we turn to the

contested issue in this case: whether the amendments and the savings

clause, in particular, violate the Separation of Powers Clause of the Texas

Constitution by either (1) usurping the governor’s clemency power, or (2)

unduly interfering with it.

        A.       Standard of Review

       We review de novo a challenge to the constitutionality of a statute.25

We afford great deference to the Legislature and presume that the statute

is constitutional and that the Legislature has not acted unreasonably or

arbitrarily.26 The party challenging the statute normally bears the burden

of establishing its unconstitutionality.27

       B.        Separation of Powers

       The separation of powers among branches of government is

fundamental in our country’s history.                   Despite not using the terms

“separation of powers” in the United States Constitution, the principle has

been applied since its foundation.28              The Texas Constitution expressly


       25
            Salinas v. State, 464 S.W.3d 363, 366 (Tex. Crim . App. 2015).

       26
            Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim . App. 2013).

       27
            Id. at 15.

       28
           See Harold H. Bruff, Separation of Powers Under the Texas Constitution, 68 T EX . L.
R EV . 1337, 1338-40 (1990).
                                                                               VanDyke – 15
provides for the separation of powers in Article II § 1; it states:

       The powers of the Government of the State of Texas shall be
       divided into three distinct departments, each of which shall be
       confined to a separate body of magistracy, to wit: Those
       which are Legislative to one; those which are Executive to
       another; and those which are Judicial to another; and no
       person, or collection of persons, being of one of these
       departments, shall exercise any power properly attached to
       either of the others, except in the instances herein expressly
       permitted.29

Although the language of the separation of powers provision is rigid,

there is natural overlap in the duties proscribed to each branch.                           Not

every instance of overlap, therefore, will amount to a violation of

separation of powers.30

       We have recognized that the Separation of Powers Clause may be

violated in either of two ways. First, it is violated when one branch of

government assumes, or is delegated, to whatever degree, a power that

is more “properly attached” to another branch.31                        When a branch of

government violates separation of powers in this way, it is said to have


       29
            T EX . C O NST . art. II, § 1.

      30
          See Arm adillo Bail Bonds v. State, 802 S.W.2d 237, 239-40 (Tex. Crim . App. 1990)
(com paring two constitutional provisions granting sim ilar powers to the judicial and
legislative branches and noting that determ ining when a violation occurs is “no sim ple
task”). Although there is natural overlap in the duties associated with the powers granted
to each branch, each branch m ay only exercise those powers granted to it. See Giles, 502
S.W .2d at 780. No one branch has power over the other branches and any attem pt by one
branch to interfere with the powers of another is null and void. See id.

      31
            Arm adillo Bail Bonds, 802 S.W .2d at 239 (citing Giles, 502 S.W .2d at 780).
                                                                            VanDyke – 16
usurped another branch’s power.32 The provision is also violated when

one branch unduly interferes with another branch so that the other

branch cannot effectively exercise its constitutionally assigned powers.33

This undue influence test “‘takes the middle ground between those who

would seek rigid compartmentalization and those who would find no

separation of powers violation until one branch completely disrupted

another branch’s ability to function.’”34 In order to determine whether the

Legislature violated separation of powers, we must first determine the

extent of the Executive’s power to grant clemency and the extent of the

Legislature’s power to create and repeal laws.

       In drafting a constitution, the people of a state are at liberty to

grant any branch of government the power to grant clemency.                            Since

1845, every version of the Texas Constitution, including the first, has

granted the clemency power to the Executive Branch. Clemency power

rested exclusively in the Executive branch until 1935 when the Texas

Constitution was amended to allow for the creation of what we now



       32
            See Giles, 502 S.W .2d at 786.

       33
         Arm adillo Bail Bonds, 802 S.W .2d at 239 (citing Rose v. State, 752 S.W .2d 529,
535 (Tex. Crim . App. 1987)).

       34
         State v. W illiam s, 938 S.W .2d 456, 460 (Tex. Crim . App. 1997) (quoting Arm adillo
Bail Bonds, 802 S.W .2d at 239).
                                                                                VanDyke – 17
regard as community supervision within the criminal justice system.35

The Texas Constitution grants the Executive branch this power in Article

IV, Section 11. It provides, in relevant part:

       In all criminal cases, except treason and impeachment, the
       Governor shall have power, after conviction or successful
       completion of a term of deferred adjudication community
       supervision, 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
       [.] 36

We have interpreted the term “after conviction” to mean after the entry

of a guilty verdict.37              Therefore, the governor may execute this power

while a case is pending on appeal. 38

       Consistent with the constitutional provision that prohibits any one

branch of the government from exercising control over any other branch,

we have long recognized that this Court has no power to control nor right




       35
           T EX . C O NST . art. IV, § 11A, enacted by Acts 1935 Leg., H.J.R. No. 46, § 1, p. 1226,
adopted Aug. 24, 1935. According to the “Interpretive Com m entary” this am endm ent was
ultim ately passed to rem ove all doubt created by our decision in Snodgrass v. State, 150
S.W . 162 (1912) that courts can constitutionally suspend pronouncem ent of sentence
without usurping the pardoning power of the governor.

       36
            T EX . C O NST . art. IV, § 11.

       37
            Giles, 502 S.W .2d at 784.

       38
          See, e.g., W han v. State, 485 S.W .2d 275, 277 (Tex. Crim . App. 1972) (noting
that the proper course of action where the Governor has com m uted a death sentence to a
sentence of life in prison while the case was pending on appeal was to affirm the trial court’s
judgm ent because the com m utation did not affect the judgm ent).
                                                                                VanDyke – 18
to review the Governor’s exercise of his clemency power.39 Our sister

court has spoken eloquently on the constitutional limits on the

Legislature’s authority: “[T]he Legislature is without authority to add or

take away from those powers or duties or substantially alter them.” 40 So

have we.41 And, without an express limitation within the Constitution, we

presume that a delegation of authority to one branch of government is

exclusive.42 Thus, the Legislature may not usurp or unduly interfere with

the Governor’s authority to exercise his clemency power after conviction.

       Of course, this cuts both ways.                      Our Constitution vests all



       39
           Ex parte Gore, 4 S.W .2d 38, 39 (Tex. Crim . App. 1928) (denying habeas corpus
relief to an inm ate who sought to have this Court grant him parole after the Governor had
denied him parole).

       40
          Ferguson v. W ilcox, 28 S.W .2d 526, 533 (Tex. 1930) (citing City of Denison v.
Municipal Gas Co., 3 S.W.2d 794, 798 (Tex. 1928)). In Ferguson, the Texas Suprem e Court
considered the constitutionality of a statute that would have allowed an im peached
Governor to hold office again despite a constitutional prohibition contained in Article XV,
Section 4 of the Texas Constitution. Ferguson, 28 S.W .2d at 534 (“The convention in
excepting im peachm ent from the pardon power of the Governor, while at the sam e tim e
providing the m ethod and pardon in cases of treason, evidently intended that an unfaithful
officer convicted of im peachm ent should not again be perm itted to hold office in this
state.”); see also T EX . C O NST . art. XV, § 4 (“Judgm ent in cases of im peachm ent shall extend
only to rem oval from office, and disqualification from holding any office of honor, trust or
profit under this State.”). The determ ination in Ferguson that the statute violated the Texas
Constitution had nothing to do with the character or effect of a pardon.

       41
         Ex parte Rice, 72 Tex. Crim . 587, 596 (1913) (“The Constitution of this State
granting that power [clem ency power] to the Governor, it is for him alone to exercise
without restraint or restriction from any source, other than the sovereigns of the state who
wrote and adopted the Constitution.”); see also Ex parte Wolters, 64 Tex. Crim . 238, 248
(1911) (noting that the Legislature is generally confined to legislative m atters and “in no
instance” can it act as a judicial branch of governm ent unless such power is expressly
conferred upon it by the Constitution).

       42
            Ferguson, 28 S.W .2d at 532; Giles, 502 S.W.2d at 780.
                                                                             VanDyke – 19
lawmaking power in the Legislature of the State of Texas.43 Provisions of

our Constitution serve only as a limitation on power of the Legislature and

not as a grant of power.44 This includes the power to make, alter, and

repeal laws, in accordance with the other provisions of the Constitution.45

Of importance here, the Legislature possesses the sole authority to

establish criminal offenses and prescribe punishments.46 The Governor’s

clemency power has never extended so far that he may presume to

exercise or substantially interfere with the Legislature’s prerogative to

make, alter, and repeal laws, let alone define criminal offenses or fix

punishment for those offenses.47 Neither does this clemency power grant

appellate jurisdiction to the governor over the acts of the judicial

branch.48          To resolve this tension among the different branches of


       43
            T EX . C O NST . art. III, § 1.

       44
         Bexar Cty. Hosp. Dist. v. Crosby, 327 S.W.2d 445, 447 (Tex. 1959) (“There can be
no dispute but that in this State the provisions of the Constitution serve only as a lim itation
on the power of the Legislature, and not as a grant of power.”).

       45
            W alker v. Baker, 196 S.W .2d 324, 328 (Tex. 1946).

       46
            Blackwell, 500 S.W .2d at 104.

       47
         Baker v. State, 158 S.W . 998, 1002 (Tex. Crim . App. 1913) (“W hile the power of
the Governor alone, under our Constitution, to grant pardons cannot be questioned, yet it is
equally beyond question that the Legislature has the sole power to define offenses and fix
the punishm ent to be inflicted on the offender.”).

       48
          Jones v. State, 147 S.W .2d 508, 511 (Tex. Crim . App. 1941) (“In our state, as in
the other states of the Union, the executive is not given appellate jurisdiction over the acts
of the judicial branch of the governm ent, and without which he can have no power to
destroy its judgm ents and decrees.”).
                                                                           VanDyke – 20
government, we must examine the character and effect of an executive

pardon as well as the character and effect of a legislative repeal as such

acts were understood at the time our Constitution was first ratified.

              1.     What is the character and effect of a pardon?

       The Legislature’s decision to make, alter, and repeal laws can

violate the separation of powers when it grants trial courts the discretion

to lower a particular defendant’s sentence after sentencing or exempt a

defendant from serving his or her sentence based on new legislation.49

However, when amendments to penal provisions invalidate an underlying

conviction, the Legislature has validly exercised its power to determine

criminal conduct and it has not usurped the governor’s power to grant

clemency.50 A look into the meaning of clemency and the understanding

of the effect and the character of a pardon at the time our constitution

was first passed by the citizens of Texas makes this clear.

       The governor’s power to grant clemency encompasses three




       49
          See, e.g., Blackwell, 500 S.W .2d at 104 (invalidating statute that allowed
defendants previously convicted of a drug offense to petition the trial court for re-
sentencing); Giles, 502 S.W .2d at 786 (invalidating statute that allowed a defendant to
petition the sentencing court to re-sentence him under newly enacted punishm ent ranges).

       50
          See, e.g., Cox v. State, 234 S.W . 531 (Tex. Crim . App. 1921) (noting that a
statutory am endm ent rem oving the act of possessing equipm ent for m aking intoxicating
liquor from the forbidden conduct in a penal offense constitutes a repeal of the law under
which the defendant was convicted).
                                                                             VanDyke – 21
methods of clemency: reprieve, commutation, and pardon.51 A “reprieve”

delays the execution of a judgment; it merely postpones the sentence for

a time.52           We have defined “commutation” as a “change of the

punishment assessed to a less severe one.”53 A “pardon” is “an act of

grace proceeding from the power entrusted with the execution of the laws

which exempts the individual from the punishment the law inflicts for a

crime he has committed.” 54

       From these definitions, it is apparent that the governor’s clemency

power allows the governor to affect the punishment an individual is

subjected to. The clemency power does not allow the governor to affect

the underlying conviction.55 This is so because a pardon, and other forms

of clemency, forgive only the penalty and do not allow the courts to

“‘forget either the crime or the conviction’”; a pardon implies guilt and

does not obliterate the fact of the commission of the crime and the




       51
            T EX . C O NST . art. IV, § 11.

       52
            Ex parte Black, 59 S.W .2d 828, 829 (Tex. Crim . App. 1933).

       53
            Blackwell, 500 S.W .

       54
            Snodgrass, 150 S.W . at 166.

       55
         This would seem to be self-evident from the text of the Constitution which lim its
the governor’s exercise of his clem ency power to “after conviction or successful com pletion
of a term of deferred adjudication com m unity supervision[.]” T EX . C O NST . art. IV, § 11.
                                                                               VanDyke – 22
conviction.56       This has always been the understanding of governor’s

clemency power as it has been enshrined in our Texas Constitution.

       We recognize, however, that we have not always used consistent

language in this regard. For example, in Snodgrass v. State, we held that

the Legislature cannot delegate to courts the ability to suspend a

sentence after conviction, though that case has since been undermined

by a Constitutional amendment.57 Additionally, in Carr v. State we stated

that “[a] full pardon blots out the existence of guilt, so that in the eye of

the law the offender is as innocent as if he had never committed the

offense.”58        This    language, however, was                 taken     uncritically     and


       56
           See Cuellar v. State, 70 S.W .3d 815, 836 (Tex. Crim . App. 2002) (Keasler, J.,
dissenting) (quoting Watkins v. State, 572 S.W .2d 339, 341 (Tex. Crim . App. 1978)); Jones,
147 S.W .2d at 510; see also Ex parte Freem an, 486 S.W .2d 556, 557 (Tex. Crim . App.
1972) (“Even though a com m utation lim its and m odifies the punishm ent assessed at the
tim e of conviction, it has no effect on the adjudged guilt of the prisoner.”); Black, 59 S.W .2d
at 829 (“It [reprieve] does not and cannot defeat the ultim ate execution of a judgm ent of
the court; it m erely delays it.”).

       57
          Snodgrass, 150 S.W . at 167 (op. on reh’g) (“W hat we did hold was that the
Legislature had no power to confer on the trial court authority to rem it the punishm ent after
a conviction had been obtained and penalty assessed by a verdict of the jury; this power
being conferred on the Governor by the Constitution, and if under the guise of ‘suspension
of sentence’ this object was sought to be obtained, the act would be void, for the word
‘suspension’ could not be given such construction”); T EX . C O NST . A RT . IV § 11A (“The Courts
of the State of Texas having original jurisdiction of crim inal actions shall have the power,
after conviction, to suspend the im position or execution of sentence and to place the
defendant upon probation and to reim pose such sentence, under such conditions as the
legislature m ay prescribe.”).

       58
          19 Tex. Ct. App. 635, 661 (1885) (citing Ex parte Garland, 71 U.S. 333, 380
(1867)). It is worth noting, however, that each of the three judges participating in Carr
wrote separate opinions, and the Presiding Judge did not join the m ajority because he did
not agree with all of the views expressed by the m ajority. Id. at 660 (“With regard to the
effect and character of the pardon granted by the Governor to the witness Hester, I cannot
                                                                            VanDyke – 23
unnecessarily from the United States Supreme Court case, Ex parte

Garland.        In Ex parte Garland, the United States Supreme Court had

declared that: “all the authorities concur[:] A pardon reaches both the

punishment prescribed for the offence and the guilt of the offender[.]” 59

       But Carr did not deal with the question of whether a pardon actually

removed a conviction.60 It dealt with whether the governor’s pardon at

issue had removed a legal disability flowing from the conviction, namely

whether the pardon had restored a witness’s competency as a witness.61

Neither did Garland for that matter. Garland considered a legislative act

that prevented a defendant from practicing law in federal court despite

receiving a full pardon for a previous conviction for treason (based upon




concur in the views expressed in Judge Hurt’s opinion.”). The cite to Garland appears
within the Presiding Judge’s side opinion.

       59
            71 U.S. at 380.

       60
          The bone of contention am ongst the judges in Carr appears to be on the effect of a
partial or conditional pardon, not a full pardon. Com pare Carr, 19 Tex. Ct. App. at 658
(Hurt, J.) (“The effect, therefore, of a pardon with a subsequent condition is the sam e as a
full unconditional pardon until the condition is broken.”) with 19 Tex. Ct. App. at 662
(White, P.J.) (“If the doctrine announced by Judge Hurt be correct, then there is absolutely
no difference whatever between a full pardon and one upon a subsequent condition.”). More
im portantly, the issue before the Court was not whether the pardon had actually rem oved
the conviction itself, it was whether the pardon had rem oved the legal disabilities associated
with the conviction. Id. at 663 (White, P.J., ) (“I am of opinion the witness Hester was
wholly incom petent to testify, because he is a convicted felon whose disabilities have not
been rem oved; and that the court erred in perm itting him to testify over objection of
defendant.”).

       61
            Carr, 19 Tex. Ct. App. at 661.
                                                                           VanDyke – 24
participating in the Civil War as part of the Confederacy).62 The act at

issue in Garland was declared unconstitutional because it undermined the

President’s removal of the consequences of a past conviction, not because

it removed the conviction itself.63                    The language we took from

Garland suggesting that a pardon “blots out the existence of guilt” was

not necessary to the resolution of the case.64

       Indeed, prior to Garland, the United States Supreme Court had

already explained that “a pardon is an act of grace, proceeding from the

power intrusted with the execution of the laws, which exempts an

individual, on whom it is bestowed, from the punishment the law inflicts

for a crime he has committed.”65 The holding in Garland was consistent

with this understanding of the effect of a pardon; the language quoted

in Carr was not. And the United States Supreme Court seems to have

rejected this language when it later recognized that the acceptance of a

pardon actually implies a confession of guilt.66



       62
            71 U.S. at 375-76.

       63
            Id. at 381.

       64
           See In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (noting that Garland did not
rest its judgm ent on the theory that the pardon at issue had blotted out Garland’s guilt).

       65
            United States v. W ilson, 32 U.S. 150, 160 (1833).

       66
            Burdick v. United States, 236 U.S. 79, 94 (1915).
                                                                              VanDyke – 25
       The same can be said of the decision in Hunnicutt v. State, which

we relied upon in Carr. There, we considered whether a former convict

who benefitted from a conditional pardon (conditional because it did not

take effect until the successful completion of his sentence) had regained

his competency to testify by virtue of receiving that pardon.67 We quoted

Bishop on Criminal Law for the proposition that “‘[a] full pardon absolves

the party from all the legal consequences of his crime and of his

conviction, direct and collateral, including the punishment, whether of

imprisonment, pecuniary              penalty, or whatever else                the   law   has

provided.’”68 We held, as we would later hold in Carr, that the pardon

had removed a legal disability that arose from that conviction, not the

conviction itself.

       We later summarized these holdings in Warren v. State. There, we

considered whether a pardon for a 1889 murder would allow the

defendant to file an affidavit in support of an application to have his

sentence suspended.69 Though the pardon purported to be a full pardon,

it took effect at the expiration of his sentence, rendering it a conditional


      67
         Hunnicutt v. State, 18 Tex. Ct. App. 498, 517 (1885). Hunnicutt was a decision of
the Texas Court of Appeals before it becam e the Texas Court of Crim inal Appeals.

      68
           Id. at 519 (quoting 1 Bish. Crim . Law § 916 (7th ed)).

      69
           W arren v. State, 74 S.W .2d 1006, 1007 (Tex. Crim . App. 1934).
                                                                           VanDyke – 26
one. Citing to many cases including Carr and Hunnicutt, Judge Lattimore

explained that “None of the authorities known to this court undertake to

hold that any character of pardon less than a full pardon, would wipe out

and obliterate the legal consequences of a felony conviction[.]” 70 Again,

we explained that a full pardon only removes the legal consequences of

the felony conviction, not the conviction itself.

       While we did reconsider the scope of the clemency power in Jones

v.   State,       we      did   not   stray   from   our    already     well-established

understanding that a pardon acts as a removal of the legal disabilities

associated with a conviction, rather than a removal of the conviction

itself.71 As it was with Carr and Hunnicutt, the issue in Jones focused on

whether a pardon had limited the consequences flowing from a

conviction. Specifically, we addressed whether a prosecutor could use a

prior felony conviction to enhance the defendant’s offense if the

defendant had been pardoned for the prior felony.72 We acknowledged

that this very question had been decided in the defendant’s favor thirteen



       70
         Id. Notably, Judge Hawkins concurred in part and dissented in part, stating in his
opinion that he would reach the sam e conclusion even if the pardon at issue had been a full
pardon. Id. at 1008-09 (Hawkins, J., concurring in part and dissenting in part).

       71
            See 147 S.W .2d at 511.

       72
            Id. at 509.
                                                                           VanDyke – 27
years earlier in Scrivnor v. State.73 However, we took the opportunity to

thoughtfully examine the extent of the pardon power in Texas.

       We noted that a pardon under our three branch system of

government is intrinsically different than a pardon from the King under

English Government.74              Under English Government, the King had the

power to set aside orders of the court; he alone could do so because the

courts had no power over their final judgments.75                       In contrast, the

Executive branch in our form of government, we explained, has no such

power; the Judiciary has the sole authority over the entry of final

judgments.76         We recognized that “[h]e can pardon, but, ‘as the very

essence of a pardon is forgiveness or remission of penalty, a pardon

implied guilt; it does not obliterate the fact of the commission of the

crime and the conviction therefor[.]’” 77

       We also noted that while earlier editions of Bishop’s “learned

treatise” had described the pardon power expansively, his more recent


       73
         Id. (citing Scrivnor v. State, 20 S.W .2d 416 (Tex. Crim . App. 1928) (holding that
the State m ay not use a pardoned conviction for the purpose of enhancing the penalty in a
subsequent case)).

       74
            Id.

       75
            Id.

       76
            Id. at 510; see also Lo, 424 S.W .3d at 29.

       77
            Jones, 147 S.W .2d at 510.
                                                                               VanDyke – 28
edition had recognized that the pardon power was necessarily more

narrowly drawn in a constitutional government based upon a separation

of powers.78          Specifically, Bishop’s 9th Edition examined cases from

around the country 79 and the United States Supreme Court 80 and

recognized that a pardon                 does not have the effect of “wiping out” a

conviction when, by committing a subsequent offense, the defendant

proved himself unworthy of the governor’s grace and that such a pardon

does not relieve the offender from any future penal consequences.81 After

a thorough examination of these issues, we concluded that “[w]hatever

might have been the force and effect of the pardon” in earlier cases was

immaterial due to the inherent limits on the governor’s clemency power.82

       The Texas Constitution does not grant the governor the power to


       78
            Id.

       79
          See, e.g., United States v. Swift, 186 F. 1002, 1016-17 (N.D. Ill. 1911) (“Am nesty
or pardon obliterates the offense, it is true, at least to such an extent that for all legal
purposes the one tim e offender is to be relieved in the future from all its results; but it does
not obliterate the act them selves. . . . it does not close the judicial eye to the fact that once
he had done the acts which constituted the offense[.]”); State v. Edelstein, 262 P. 622, 630-
32 (W ash. 1927) (exam ining the weight of authority regarding pardoned offenses and
determ ining that a pardoned offense m ay be used for enhancem ent purposes); Herndon v.
Com m onwealth, 48 S.W . 989, 990 (Ky. 1899) (“The pardon relieved the convict of the
entire penalty incurred by the offense pardoned, and nothing else or m ore.”).

       80
         See Carlesi v. New York, 233 U.S. 51, 59 (1914) (upholding the New York Court of
Appeal’s decision, which held that a conviction was not obliterated by a pardon, but
rem ained a fact in the past history of the defendant).

       81
            Jones, 147 S.W .2d at 510.

       82
            Id. at 511.
                                                                              VanDyke – 29
destroy judicial judgments and decrees.83                     It never has.        While the

clemency power permits the governor to discharge a convict from further

penal service, he exercises no influence on the judgment of conviction nor

does he have the power to do so.84 With this understanding of the scope

of pardons under the clemency power, we overruled in Jones all former

decisions to the extent that they had incorrectly interpreted the pardon

power too expansively.85 But in reaching this conclusion, we did not alter

our   established            understanding    that    a   pardon      only    removes        the

consequences of conviction rather than the conviction itself. Rather, we

recognized that some consequences of a conviction cannot be removed

despite a pardon.86




       83
            Id.

       84
            Id.

       85
            Id. at 511-12.

       86
          Id. at 511 (“In our state, as in the other states of the Union, the executive is not
given appellate jurisdiction over the acts of the judicial branch of the governm ent, and
without which he can have no power to destroy its judgm ents and decrees. He m ust take
them as he finds them . In penal cases it becom es the duty of the executive branch to
enforce the laws as written and interpreted. Clem ency power is vested in the Governor to
the extent only that he can rem it fines im posed which rem ain uncollected and discharge the
convict from further penal service. Prior to his proclam ation so doing he exercises no
influence on the judgm ent of conviction. He has no power to restore the convict to his
license which m ay have been cancelled by reason of his conviction. He cannot set aside the
divorce which the convict’s spouse has obtained on the ground of such conviction. He
cannot restore him in his social standing contrary to public opinion and the edicts of the
social order, or societies to which he once belonged. In civil actions for libel the publisher of
the story of plaintiff’s conviction m ay prove the fact even though the full pardon has been
granted.”).
                                                                               VanDyke – 30
       Since Jones, we have continuously held that a pardon does not

obliterate the underlying conviction; it merely removes the legal

disabilities associated with that conviction. The United States Supreme

Court shares this understanding and has for over a century.87 The State

has certainly not argued that Jones should be overruled in favor of a

brand new understanding of the character and effect of a pardon. And

announcing a new, more expansive understanding and holding the

legislative enactment at issue unconstitutional would run afoul of our duty

to presume constitutionality and avoid such constitutional conflicts.88

       When the governor exercises his clemency power, the underlying

criminal conviction remains. The pardoned conviction can subsequently

be used to deny an individual bail89 or probation,90 and to enhance

punishment in a later proceeding.91                      Although an individual may

ultimately remove a pardoned conviction from his or her criminal records




       87
            See, e.g., Burdick, 236 U.S. at 94; Carlesi, 233 U.S. at 59; W ilson, 32 U.S. at 160.

       88
            See, e.g., Ex parte Perry, 483 S.W .3d 884, 903 (Tex. Crim . App. 2016).

       89
         See, e.g., Runo v. State, 556 S.W .2d 808, 809 (allowing a conviction to deny bail
in a subsequent proceeding despite a pardon).

       90
        See, e.g., Taylor v. State, 612 S.W .2d 566, 571 (Tex. Crim . App. 1981) (using a
pardoned conviction to deny probation).

       91
           See, e.g., Gaffney v. State, 575 S.W .2d 537, 541 (Tex. Crim . App. 1978)
(perm itting use of a conviction for enhancem ent in a later proceeding, despite a pardon).
                                                                                      VanDyke – 31
through an expunction, the expunction comes from a judicial process, not

from the governor’s grant of a pardon.92 Overruling Jones would render

all of these subsequent uses of a pardoned conviction unconstitutional.

And yet it would not alter our understanding that a pardon only removes

the legal consequences of a conviction, not the conviction itself.

                2.      What is the character and effect of legislative repeal?


        In contrast, we have repeatedly applied legislative enactments that

repeal criminal laws to cases pending on appeal. When the Legislature

decriminalizes conduct and allows for the retroactive application of the

decriminalizing, pending convictions predicated on that conduct are

invalid.93 The appropriate remedy, in those instances, is to reverse the


        92
           A pardon, based on actual innocence or another reason, grants an individual the
right to expunction, but the pardon itself does not rem ove the offense from the person’s
crim inal records. See T EX . C O D E C RIM . P RO C . A NN . art. 55.01(a)(1)(B) (a person is entitled to
have all records and files relating to the arrest expunged if the person was convicted and
subsequently pardoned on the basis of actual innocence with respect to that offense, if the
applicable pardon clearly indicates on its face that it was granted on the basis of the
person’s actual innocence, or if the conviction is pardoned for another reason). A pardoned
individual m ust petition the appropriate court and obtain an expunction order for an
expunction of the pardoned offense to occur. See Id. at art. 55.02 § 1a (actual innocence
pardons); Id. at § 2 (pardons for another reason); see also Ex parte Green, 373 S.W .3d
111, 113 (Tex. App.— San Antonio 2012, no pet.) (“The right to expunction is a statutory
privilege.”).

        93
           See, e.g., W illiam s v. State, 476 S.W .2d 307, 309 (Tex Crim . App. 1972); Mendoza
v. State, 460 S.W.2d 145, 147 (Tex. Crim . App. 1970). The State argues that Mendoza and
W illiam s are inapplicable because they were based on the savings provision contained in
article 14 of the Penal Code of 1925, which has since been repealed, and they predate our
decision in Giles. However, article 14 of the Penal Code of 1925 and our holdings in
Mendoza and W illiam s were prem ised on the com m on law principle that by repealing a penal
provision, the Legislature indicates that the conduct rem oved is no longer to be prosecuted
                                                                               VanDyke – 32
conviction and dismiss the prosecution.94

       During the same time period in which our Court discussed the

character and effect of a pardon, it applied the legislative repeal of

criminal laws to cases pending on appeal unless the legislature specifically

indicated that repeal should not apply to those cases.                           In 1907, for

example, we considered a case where the defendant had been convicted

of improperly catching and selling game fish in Harrison County.95 But,

while the case was pending on appeal, a legislative amendment

decriminalizing the defendant’s behavior took effect, and the defendant

sought a reversal of his conviction on appeal.96

       In that case, we reversed the conviction, recognizing that there can

be no penalty or criminality in violating a repealed statute.97                          This is


as a crim e. Ex parte Mangrum , 564 S.W .2d 751, 753-54 (Tex. Crim . App. [panel op.]
1978). When a conviction is pending on appeal based on such conduct, the conviction
should be reversed because there is no longer a crim e to be prosecuted. Id. at 753.
Although we now have a general savings provision which alters this rule and provides that
an am endm ent or repeal does not affect any violation of the statute or any penalty,
forfeiture, or punishm ent incurred under the statute before its am endm ent or repeal, the
Legislature is free to enact a m ore specific savings provision when repealing or am ending a
statute. Id. at 755 (referencing the general savings provision currently found at T EX . G O V ’T
C O D E A NN . 311.031(a)(3) (W est 2013)). W hen the Legislature enacts a savings provision
sim ilar to the com m on law principle, we will enforce it accordingly so long as it does not
violate the Texas Constitution.

       94
            W illiam s, 476 S.W .2d at 309; Mendoza, 460 S.W .2d at 147.

       95
            Hall v. State, 106 S.W . 149, 149 (Tex. Crim . App. 1907).

       96
            Id. at 150.

       97
            Id.
                                                                              VanDyke – 33
because the legislative act of repealing the statute upon which the

conviction is based annulled the conviction.98                     We have applied this

understanding of the character and effect of a legislative repeal in a

number of cases. 99

       Indeed, this understanding of the effect of a legislative repeal of a

criminal statute has been characterized as “universal.” 100 This common-

law rule can be traced back to the 1809 decision from the United States

Supreme Court in Yeaton v. United States, which held that “it has been

long settled, on general principles, that after the expiration or repeal of

a low, no penalty can be enforced, no punishment inflicted, for violations

of hte law committed while it was enforced, unless some special provision

be made for that purpose by statue.”101 This was the understanding held

by our framers regarding the character and effect of a legislative repeal

when our first Texas Constitution was ratified. Yet, out of all the many



       98
             Kenyon v. State, 23 S.W . 191, 191 (Tex. Crim . App. 1892).

       99
          Hall, 106 S.W . at 150 (citing Kenyon, 23 S.W . at 191; Chaplin v. State, 7 Tex. Ct.
App. 87 (1879); Tuton v. State, 4 Tex. Ct. App. 472 (1878); Montgom ery v. State, 2 Tex.
Ct. App. 618 (1877); Hubbard v. State, 2 Tex. Ct. App. 506 (1877); Sheppard v. State, 1
Tex. Ct. App. 522 (1877); Wall v. State, 18 Tex. 682 (1857)).

       100
           See, e.g., Bell v. Maryland, 378 U.S. 226, 230 (1964) (noting that Maryland
follows “the universal com m on-law rule” that requires a dism issal of all proceedings after a
legislature repeals a crim inal statute if the proceeding had not yet reached final disposition
in the highest court authorized to review it).

       101
             9 U.S. 281, 283 (1809).
                                                             VanDyke – 34
cases analyzing the character and effect of our Legislature’s repeal of a

criminal statute, there are no instances in which this Court or our sister

court held that the legislative repeal of a criminal statute amounted to the

functional equivalent of a pardon. Had the case before us arisen at the

time our framers drafted the Texas Constitution, it is beyond question

that Appellant’s conviction would have been reversed without any concern

regarding the usurpation of the governor’s clemency power.

     Moreover, the cases in which we have found the Legislature actually

usurped the governor’s clemency power did not deal with a legislative

repeal; they involved legislation which granted previously convicted

defendants the ability to petition the sentencing court to hold a re-

sentencing hearing to apply a new statute. In those cases, the legislation

at issue continued to hold the defendants’s conduct as a criminal offense;

however it allowed them to be re-sentenced under new, less severe,

sentencing provisions. The underlying convictions of the defendants in

those cases remained unaffected by the amended legislation.

     For example in State ex rel. Smith v. Blackwell, we examined a

section of the Texas Controlled Substances Act which permitted any

person who had been convicted of an offense involving marihuana,

whether the conviction was pending on appeal or final, to petition the
                                                                    VanDyke – 35
court for resentencing under new sentencing provisions.102                  Despite

referring to the action as “resentencing,” the statute permitted courts to

impose a less severe punishment, i.e. a commutation, thus violating the

Separation of Powers Clause.103 We held it was unconstitutional for the

Legislature to allow courts to change sentences after a final conviction.104

     Similarly, in Ex parte Giles, we considered a portion of the Texas

Controlled Substances Act, which permitted an individual whose action

was pending on appeal or commenced after the effective date of the

section     in   question,       to   elect   punishment   under   new   sentencing

provisions.105 Again, the section we addressed permitted trial courts to

set aside the earlier sentence and hold a new sentencing hearing to

impose a new, less severe sentence, i.e. a commutation, in violation of

the Separation of Powers Clause.106 We held it was unconstitutional for

the Legislature to allow courts to change sentences at any point after

conviction and sentencing, whether or not the conviction was final.107


     102
           500 S.W .2d at 99.

     103
           Id. at 104.

     104
           Id.

     105
           502 S.W .2d at 786.

     106
           Id.

     107
           Id.
                                                                             VanDyke – 36
       In both cases, this Court took issue with the new sentencing

hearings that would necessarily result in lower sentences imposed on the

defendants. However, the present case presents a different scenario.

The Legislature did not authorize new sentencing hearings that would

allow courts to change sentences which had already been imposed when

it amended Section 841 of the Health and Safety Code. The Legislature

categorically determined that certain conduct was not criminal; the

amendments reflecting this decision affected the validity of convictions,

not just sentences.108 There was no transfer of clemency discretion from

the Governor to the Judiciary.

       This difference is important in recognizing how the amendments to

Section 841 conform with our Separation of Powers Clause.                                  The

Executive has the power to exercise discretion to grant clemency and

affect sentences at any stage after an individual is convicted based upon

the individual characteristics of each defendant.109 The Legislature has

the power to make, alter, and repeal laws and categorically criminalize or



       108
           W e noted a sim ilar problem with the statute at issue in Snodgrass. See Baker,
158 S.W . at 1003 (noting that one problem with the legislation at issue in Snodgrass was
that it provided that the trial court “should hold another trial, hear evidence and determ ine
whether or not he would relieve from punishm ent fixed by the jury and judgm ent of
conviction”).

       109
             T EX . C O NST . art. IV, § 11(b).
                                                                               VanDyke – 37
decriminalize behavior.110            The Legislature validly executed this power

when it removed Appellant’s conduct from the list of conduct subject to

prosecution under the Health and Safety Code. In enacting the savings

clause, the Legislature permitted those whose convictions were not final

to benefit from the new law.                   Although the ultimate effect of the

amendments removes the consequence of a conviction, the reason is due

to the invalidity of the conviction itself, not a commutation or pardon of

the sentence.

       The court of appeals and the State relied heavily on Giles in their

opinion and argument, respectively, in this case.                       In Giles, we noted

several issues which would arise if we upheld the statute which permitted

courts       to   resentence      defendants.111           A   look     into    those     issues

demonstrates how the statute at hand is different than that at issue in

Giles. First, we noted that in order to resentence a defendant under the

provisions of the act at issue in Giles, the underlying jury verdict upon

which the judgment was based would have to be set aside in whole or in




       110
          T EX . C O NST . art. III, § 1; see also Baker, 158 S.W . at 1003 (upholding a statute
allowing a trial court to suspend sentence because “the law is so written that it becom es a
part of each article of the Code, prescribing the punishm ent”).

       111
             502 S.W .2d at 782-83.
                                                            VanDyke – 38
part.112 Setting it aside in whole presented a problem because it would

disrupt the conviction, and the defendant still committed a crime which

warranted punishment.113     Setting aside only the part of the verdict

assessing punishment would deprive the defendant of his right to have a

jury assess the punishment for the act in question.114      These are not

problems in the present case because the Legislature has determined that

the underlying conduct is not a crime and therefore the Appellant is not

guilty of criminal conduct warranting a conviction. Additionally, in the

absence of a valid conviction, Appellant no longer needs to be punished.

If Appellant had a jury verdict in this case, we could set it aside without

the issues addressed in Giles.

     Another issue we noted in Giles was that the act in question made

conduct which was a felony a misdemeanor.115 We questioned whether

the court imposing a new sentence could find the defendant guilty of a

misdemeanor, whether the underlying indictment even supported such

action, and whether the district courts would have misdemeanor



     112
           Id. at 782.

     113
           Id.

     114
           Id.

     115
           Id. at 782-83.
                                                                   VanDyke – 39
jurisdiction to dispose of the cases in such a way.116         Again these issues

are not present in the case at bar because the entire conviction is

invalidated by virtue of the repeal, not merely altered.

     The Legislature usurps another branch’s power when it assumes, or

is delegated, to whatever degree, a power that is more “properly

attached” to another branch.117                Repealing laws and decriminalizing

conduct has always been part of the Legislature’s delegated power. The

Legislature has not assumed the power to grant clemency because

decriminalizing conduct through the use of legislative amendments is not

and has never been part of the executive’s discretionary authority to

forgive the legal consequences flowing from a conviction.

                 3.   The Legislature did not unduly interfere with the
                      Executive’s power to grant clemency.

     Separation of powers is also violated when one branch unduly

interferes with another branch such that the other branch cannot

effectively exercise its constitutionally assigned powers.118 Therefore, in

order to determine whether the amendments to the Health and Safety

Code unduly interfere with the Executive branch’s power, we consider the

     116
           Id.

     117
           Arm adillo Bail Bonds, 802 S.W .2d at 239.

     118
           Id.
                                                               VanDyke – 40
impact      of   the   amendments   on   the   Executive’s   exercise   of   its

constitutionally assigned power.119 In doing so we recognize the interplay

amongst our branches of government and take a middle-ground approach

between rigid compartmentalization of each branch’s powers and allowing

one branch to completely disrupt another branch’s ability to function.120

     The amended version of Section 841 of the Health and Safety Code,

and its savings clause, affects the validity of certain convictions obtained

under Section 841.085 of the Health and Safety Code.             It does not

prevent the governor from granting clemency to those prosecuted under

Section 841.085 whose convictions remain valid. In particular, it does

not prevent the governor from granting clemency to individuals whose

convictions have already become final under the previous law. In short,

the Legislature has not prevented the Executive branch from effectively

exercising its power to grant clemency in general, nor with regard to

sexually violent predators convicted under Section 841 of the Health and

Safety Code. Therefore, the statute does not unduly interfere with the

Executive’s power to grant clemency.

                              III. Conclusion


     119
           Id.

     120
           Id.
                                                                             VanDyke – 41
       The Legislature does not violate separation of powers when it validly

exercises its power to repeal criminal laws and does so without granting

clemency power to the courts.              In the present case, the Legislature has

done just that. Both our Legislature and our governor have decided that

a sexually violent predator’s failure to comply with his sex offender

treatment program as part of his civil commitment should be resolved

through the civil commitment program rather than give rise to a new

criminal conviction. The Legislature was within its power to make this

difficult legislative change and apply that change to defendants whose

criminal cases were pending on appeal at the time the amendment

became effective. We defer to the statute crafted by our Legislature and

signed by our governor because this legislative act did not violate the

Separation of Powers Clause in the Texas Constitution. Accordingly, we

vacate Appellant’s judgment of conviction.121




Filed: December 20, 2017

Publish


       121
            Appellant rem ains subject to the Texas Civil Com m itm ent Office’s tiered program
of treatm ent and supervision. He will rem ain in the civil com m itm ent program until a court
determ ines that he is no longer likely to engage in a predatory act of sexual violence. The
Texas Civil Com m itm ent Office determ ines which tier of the program , i.e. level of
restrictions, Appellant will be placed in based on his behavior and the violations which gave
rise to his vacated conviction.
