      OFFICE     OF THE ATTORNEY GENERAL OF TEXAS




xonorable   0. J. s. Xllingson



Dear Sir:




                                            940,   ana attached   i

                                      serving a felony sentenae
                                       beneficiary    of a procla-
                                     Texas on June 28, 1037,
                                  ar raprievew ana providing
                                  this proolamatlon shall not
                                on sentence.*      Thereafter  on
                        ivaa another proclamation by the Gov-
                        e-year extansion of reprieve” ana
                        ovision as the first mentioned groc-
                      t that time out of prison under the
                      nsidarcd as time served on his sentence.
                 s ware issued upon the recommendation and
advice of the aoara OS Pmdor?s and Paroles.’        In substanca,
you requast our opinion es to whathar or not eSSeot shall
be given to the provisions    in tha proclamations     that the

                                             ‘.




             c
           .
       I




                                                                               886

Bogorable      0. J. s. Ellingson,   Page 2                           .




tine  out of prison under the proclamations should not be
counted as time served, or whether such time should be con-
sidered as having been served on the sentence,
            I.!l Seotion 11 OS Article   4 of the State C&stitu-
tion, it is prOVidea     that “In all criminal cases except
treason and impeachment the Governor shall have pou;er after
oonviction, on tha written signed recommendation and advice
or the Boara of Pardons and Paroles or a majority thereof
to grant reprieves and commutations or punishqsnt and par-
dons; and under such rules as tha Legislature       may prescribe
and upon the written recoraendation       and advice of a majority
or the goara of Pardons and Paroles he shall have the power
to  remit Sines and forfeitures.       The Governor shall have the
power to grant one reprieve in any capital       case for a period
not to exceed thirty days; and he shall have the power to
revoke psroles and conditional      pardons.R
               It is true, of oourse, that the substance or the
 proolamations,      not necessarily      the names by which they were
 called,    should govern their effect.          Rx Parte Black, 123
 Tex. Cr. Rep. 472. Rowaver, Qle are inclined             to the opinion
 that the courts would hold these proclamations             to be eraotly
what they purport to be, that is, reprieves,               Kost of the
 definitions      OS the v:or& “reprieve”     arise out of aeath penal-
                 There was a time in Ennland when nearly every in-
 ~~a%%*oS         the Penal laws was p&shable         by death.      Of
 cou~?se when the enforceffient of the extrems penalty is post-
 poned it is a postponement of tha whole sentence.               However,
 the punishKent for crime having become more moderate and hu-
 mane, imprisonment having become the rule rather than the ex-
 ception,     the granting of reprieves       is not confined to,death
 penalty cases but may be applied to cases iniolving                lesser
 punis.hmonts.      Rx  parte  Dormitzer,    249  P. 639,  Supreme     Court
 of Oregon; Rx parta Black, 123 Tex. Cr. Rep. 47%. One OS
 the definitions      of reprieve copied in Rx parte Black, ‘supra,
 1s as follows:       *The term reprieve      . , , is, merely uoed to
 signify the postponement of the sentence for a time.                  It
 doos not and cannot defeat tho ultimate execution OS a judg-
 ment of the court; it merely delays it.”             It can be very well
 argued that a procla:!ation         postponing the execution of the
 unexpired part OS n sentence c-oulcl b:, a reprieve           Just    the
 same as would be tho proclamation whit!] would postpone the
 exeoution of the whole OS the sentence.             In fact the Dor-
,mit2er    oase,   supra,   involved   just  the  same  kind of proalama-
                ,
    HoForable   0. J. S. Ellingsoh,   Page 3
,

    tion as those concerned in this opinion request.       The man
    had embarked upon the service of his santence before       the
    reprieve was granted.    From the opinion of the Suprarr;e
    Court of Oregon in that case, we quote:                  ‘;>
                                                             t.:..
               *The word (reprieve’.- in its general sense
          means :
                   “*A tcniporary suspension of the exacution
         of a sentence, especially        of a sentence of
         t;“,;h,     or the order or warrant for such suspen-
                 . I Wsbster*s International    Dictionary,
              *‘A reprieve is the withdrawing of a sen-
         tenoe for an interval of ti&e whereby the axecu-
         tion is suspended.’ 29 Cyo. 1561.
                “In its restricted     or technical   application,
         the word ‘repriave’      is linited   to a temporary
         suspension of a sentence of death.         State v.
         Finch, 54 Gr. 412, 497, 500, I.03 p. 505; State
         (Clifford),    v. Heller,    63 X. J. LayI, 105, 42 A.
         155,   57 L. R. A. 312, 315, 317; In re Buchanan,
         146 N. Y. 264, 40 N. E. 883.         Tha word ‘re@evc’
         has been usod in the ~opinion of oourts in its
         broader sense.     In State (Stafford)     v. Hawk, 47
         M. Pa. 434, 435, 34 s. E. BIB, which was not a
         OapitRI case, but one in which the defendant v!as
         sentenced to i~prisomcnt         for 12 years, the
         COUrt    USeS this 1Kl&lS38:
                **The ‘power to pardon necessarily   includes
         the po?Jar to reprieve or suspend the sentence
         until the matter can be inquired into and detor-
         mined,    At comon lnw the povier to reprieve was
         lodged in the courts,    as the representatives    of
         the klcg, he being considered     the very fountain
         of justice;    and he was never called upon to arer-
         oise it excapt in capital. case3 of necessity.
               . Because the king was never personally
         iailed   upon to exercise the porier of reprieve,
         owing to the authorlty dalegated by hia to his
         oourts,   except in capital  cases, has grown up tho
         theory that ho hnb no such power. . . . That he
         had the power to repriove or suspend sentence lo
                  .
Honorable   0. J,   3. Ellingson,     page 4


     any case of necessity,         there   oannot be the
     least doubt. **
            Ii the proclamations were reprieves,   then they
fall squarely   within the powers aonferred in the above seo-
tlon of the Const,itution.    However, we do not find it neces-
sary to base our opinion solely upon that ground.
             If the proolamations were not reprievee    teohnl-
oally,    the same result will be reaohed nevertheless.     As said
in 46 C. J. 1205, *The rule sustained by the weight of author-
ity is that the power to pardon includes the power to parole.*
In the same authorlty on page 1197 it is said that “it is
generally    held that the power to pardon necessarily     contains
in it the lesser power of remission and commutation,*         And
on page 1196 of the same volume it is aleo said that it is
generally    held that the power to pardon includes the power
to reprieve.     On page 1200 it is said that “the power to
grant a pardon includes the power to grant a conditional         par-
don, the oondition to be either preaedent or subsequent.*
It is said that the oondltion may be of any nature so long
a8 it is not illegal,     immoral or impossible   of performanoe.
The oondftion may be that the oonvloted person shall leave
the State and never again return to it.        20 R. C. L. 533;
46 0. J. 1201.     In the caee of Ex parte Davenport, 7 S. W.
 (2d) 589, our Court of Criminal Appeals held that the oon-
dltion In a pardon that the convict should be immediately
oommitted to and kept confined in an insane asylum was a
valid oondition,    the violation  of whioh made the pardon aub-
jeot to revocation     aa provided therein.    From 20 A. C. L.
503 we quoter
           *. . . A condition of a pardon that requires
     reimprisonment for the remainder of’ the original
     sentence of lmprisonuent,     after the expiration  of
     the particular    period of time fixed~ by the Court with-
     ;: ;k;;i   the sentence imposed should be exeauted,
                  It cannot be eaid to be immoral, or to
     be impoaiible   of performance during the life of
     the petitioner;    nor can it be illegal,   ainoe the
     particular   period of time within which the sen-
     tence is to be suffered    by the oonvict es speck-
     fied in the sentence is not a part of the legal
     sentence, exoept so far as It l’lxea the quantum
     of time that he must suffer such penalty, and the
    Honorable   0. ii. S. Ellingson,   Page 5


.        oondit’ion imposed is not forbidden and does not
         Increase the punlshilent imposed by the court in
         Its sentence.  ,’ . .”

            The above quotation from Ruling Case Law is well
enstained by the authorities      which it cites in the f$t
note.   In the case of State v. Home, 7 L. R. A. (R.9;)
719, It was held that Q condltio:lal      pardon may by its ex-
~press terma provide that upon violation      of the conditions
the offender    shall be liable   to summary arrest. and recom-
mitment for the unexpired portion of his original        sentence.
Such stipulations     upon aocaptsooe  of the pardon beoome
binding upon the oonvict and authorize his rearrest        and
reooAmmitmsnt in ths manner and by or through the officials
authorized as stipulsted     in the pardon,    Frsr; ths opinion
of the Supreme Court of Florida in that case ws quote:
                  WThe condition    of the pardon in this case
          that requires raimpri3onzent        for the remainder
          of tha original      sentence of imprisonnent,     after
          the expiration     of the yartloular     period of time
          iirea ‘by the court within which the sentence im-
          posed should be executed,        cannot be said to be
          tioral,     or. to be im?ossiblo    of performncc      dur-
          ing the life of the petitioner;         nor can it be il-
          legal,   since the paAicul?r       period of time within
          which the sentence is to be suffered          by the con-
          vict as specified      in  the sentonce is not a pnrt
          of the legal ssntenoe,exoept        so far as it fixes
          the quantum oftime        thst he nust suffer such Den-
          alty, and the condition        imposed is not forbidden
          by la;v, and does not increase the punishment im-
          posed by the oourt fn fts sentence.           The case of
          State ex rel. Davis V. Hunter, 124 Ioxa,          562,
         '104 Aa. St. Rep. 361, LOO R. Yi. 510, does not
          conflict    with thi8 rule, as in that case ELcon-
          dition imposed was held to be illegal.           4 Current
          Law, 872.

               “If the particulnr    period of, time fixed by
         the court ciithin v:hich the execution of the sen-
         tence of imprinon:r.ent ~(13 to be fully performa’d
         or suffered    is extended, or held in abcysncs, or
         postFonea, the time or duration of impriaon&ent
         Is not thoreby increased,     and the interruption
         of the execution of the sentence during the time
         the petitioner    enjoyed his liberty    under the
                  .
Honorable~O.'J.       S. Xlllngson,   page 0

.
        conditional    pardon was secured by him by his
        aoceptance    of the condlticnal pardon, and the
        petltisnar    cannot coaplaln of it.
              aIf the conditloa  of+ the pardon upon which 2;
        the petitioner   S3CUSed his rSLeaS8 fro5 iz&i,S-   ,.'.
        oment has bee3 violated     by bin, the pardon is
        void, and the petitioner   may be arrested and'oom-
        pelled to undergo so much of the original     sen-
        tence as he had not suffered at the tiza of his
        release.   . . .m

             Xn the case Of Ro Brock Kelly, 20 L. R. A. (X.5.)
337, the Supre.ne Court of California        entered the same hold-
ing as the Supreme Court of Florida did in the Horns case,
saying that qthe power to annex to a pardon or commutation
any reasonable cszditicn      prior or subsequent 13 LQplied up-
on the principle     that the grzatcr includas the less."          Tine
case of l,?illor v. The State, 45 L. R. A. 502, before the
Alabama Supre~;o Court, arose under a constltutionsl            provi-
sion vesting in the Governor the power to ranit fines and
forfeitures    and to grant reprieves,      coxiutatioa   of sen-
tence and pardons.      The statutes   of that stats made ~rovi-
sions for the granting of pnroles and Uiller v:es the re-
eipient of such a proclanntisn.        The parole having been
revoked in oocordance with the provisions          of' the statute
and he hnving bean reincarcarated       filed a petition      for his
release upon the ground of la02 of authority for his recom-
mitment.     The court there said that "the parole or a con-
vict is in the nature of a conditi~znnl pardon and within
ths constitutional     grsnt o f the pardoning poxer to the Gov-
ernor",    and sustained the statutes.       It wa3 further hol.C
that "if he prefers to sews out his sentence as original-
ly imposed ugon hln to a suspension of it by subjecting              him-
self to tha conditions      nominated in the parole he has the
clear right to do so.       But if he elects     to accept the parole
and availn hinself     of the liberty   it conrers he must do so
upon ths conditions      upon which alone it is granted to him.
One of these conditions      is that his nentence shall continue
in fieri    and that the Governor shall have the power to ex-
ecute it in full upon him should he forfeit           the llbarty    and
inaunity oonditionslly      securad to him by the executive        or-
der."
             A pardon may contain a condition that the conviot
shall    maintain &ood behavior and observe the law and the
Honorable    0. J. s. Ellingson,     Page 7


kiles of parole provided by the Board ,of Prison Cormis-
sioners and the power zay be vested in the Governor to him-
self alone detertins   the question as to whether such coh-
ditions  have been violated.   Ex parte Redwine, 236 S.,,.Y:.
96.                                                               ,,:;,
                                                                    ..,
            In the oase of Ex parte Dornltzer, already quoted
Srom, the court further said that “regardles8   of whether or
not the Governor exceeded his aut.hority In granting, the BO-
called reprieve Bdminson has no ground for complaint,    Be
accepted the favor of the Governor ana was thareupon released
iron; jail .”
                In the instant oase the parolea,        if they ware pa-
 roles,     in ei’fect contained the conditions        that if the prisoner
 should presently obtain hi.8 liberty          for the period of tlma
 specified      therein,   he would thoroaftes     serve the Bade length
 of time in tha penitentiary.         The proclazatlons       offered    the
 prisoner the choice as t.o whether he would take his liberty
 at the time of the proclasLation or whether he would serve
 out his term and then take 8uCh liberty.              Be preferred to
 have his liberty        then and to give up to tho State an equal
 period of tine at a later date.          ilo had that choics,       and he
 exercised      it.   If in his judgizsnt the proclaaation        offered
 him nothins of value, then he was not conpelled              to accept
 it.    Vi0  do   not believe  that there   was   anything   imornl     in
 the oondition which would require the later servioo of the
‘remainder of the sentence.         AS indicated      above, we ara also
 of t.he opinion that the power to pardon includes the power
 to issue this le383r. form of executive           OleJ3enCy~

             Prom 8 R. C. 1.     page 259, we quote:
             *The judgment is the penalty of the law,
      as deolared by the court, while tha direction
      with respect to the time of carrying it into ef-
      fect is in the nature of an award of execution.
      Y?hore the penalty is imprisonment, the aentenco
      of the law is to be satisfied    only by the actual
      suffering   of the inprisohmnt    Inposed, unless re-
      nitted by death or by soice legal authority.     There-
      fore ths expiration   of tirie without imprisonmnt
      is in no sense an execution of the sentance.       AC-
      cordingly   where the judgment and sentence i8 im-
      prisonment for a certain tirm, and from any cause
             .




                                                                      892



.Honorable       0, J. 8. Ellingson,   Page g


      the tlrne elapses without the imprisonment be-
      ing endured, it will still    be a valid,  sUbsi&-6
      ing;unexecuted    judFgnant. And where a convict :~:‘a
      18 permitted to absent himself from prison the
      time when he is absent is no part of the sentence,
      Ana therefore   where a convicted  defendant is at
      liberty  and has not served his sentence,    if’ there
      is no statute to the contrary,    he nay be rear-
      rested as for an escape, and ordered into custody
      on the unexecuted judgment, and the result 1s the
      same if he escspos to another jUriBdiOt.ion and 18
      brought back, though by illegal    means.”
            In the case of Hopkins v, North, 49 A. L. R. 1303,
by the Knryland Court of Appeals, a man named Whitby serv-
~lng a sentence in jail bsoane seriously      ill and uron advice
of the jail physician was given over to SOUBof his friend8
,so that he could receive proper trentaont.        I-Xcwa8 taken to
a hospital   or sanitarium.    Later the State’s    attorney filed
a mandamus petition     to corn@ t~he shorlff    to arrest Xhitby
and keep him in jail until he haa served out the part of the
scntenoe which remained unserved at the time he had been re-
leased for medical treatment.      The mandamus was granted. From
the oourtcs opinion .we quote as follovis:

             *The chief questions are whether Ylhitby is
      still    subject to the sentence imposed upon him,
      and, if ha is, thon whether a mandamus ifWed
      upon the petition       of the state’s    attorney is a
      proper remedy to use in compelling tho sheriff
      to ‘8~ that he serves that sentence?            The de-  -,
      oided weight of authority,         and, in our opinion,
      the better reasoned OQB~Bhold that, where a
      prisoner 8ocurcs his liberty         through some il-
      logal.or     void order, it is to be treated as an
      escape, and he can be retaken and compelled to
      serve out his sentence,         even though the time in
      which tho original        sentence 8hsuld have been
      served has expired.         (Citing authorities)     In
      the present cass it is, as we have seen, con-
      oeded. that the magistrate’s        order directing
      \Yhitby(s release v:as invalid,       and that the sher-
      iff’s    action in rolcnoing      him, though done in
      good faith,      v:as unauthorized and illegal,     but
      it is also olerr that Khitby was given his
      liberty     upon tha distinct     understanding that
Eonorable            Q. J, S. ~llingson,                          page 9


          rhen       he           haa      recsverea       rron         his      illness    he   v:0~ia
          return          to        jail      unexpired portion
                                               and     eerv0      the
         of his sentence,          R8 tOOk EiaViIntags Of his il-
         legal release by leaving jail,          and secured the
         benefit of the special medical treatment which <-
         this release enabled him to obtain, and it                  *-
         would seea to ba a travesty         on justice   to hold :jz.
         that he can now eacape the penalty the law has
         inflicted       upon his by chining     that his release
         Va iE’ ille$ il   l .Such a holding would not only be
         technical,       but, under the facts shown in the re-
         cord, 1.t would also be against public policy.
         We accordingly        thick that under the circuit-
         stances OP this case #hitby m3t           be treated as
         having escaped,        and 30 is subject to arrest,
         and t.hat upoc his arrest he can be conpslled            to
         88rve      the  rezaindor of his s3ntmce.n
               In he case of Re Volker, 12 A. L. R. 1267, by
the      Nebraska Suprsne Court, the defendant heving been con-
victed       sna      ssnteaced                  to a    tern      of         in~risonmnt        nnd hsving
appealed and tha sentence having been affimed,           and the
stat3 of~ficisls    havi:lg failed   to take hti into custody in-
nedlately   upon affimance,       the question under consideration
was whet.her the convict was entitled        to have the tine in-
tervening between the return of the mndate and the tine of
his crrcst   creaited    upon his sentence.     The court a8niod
the credit.     Front the oourt*s    opinion we quote as follows:
               “True, while Volker did not request the
         delay, he was charged with knowledge of the
         status of his case and thereby he clearly        ac-
         quiesced in the delay.       Counsel observe that
         Volksr assumd that *the wtter          had been diu-
         posed of in his favor.*       But ~111 it bs serl-
         ously argued that the xiere assumption of+ a
         material fact by a litigant       can bo made to
         take then place of an existing      fact7   And a lit-
         gant is, of course,    in   the absence of fraud
         or decait,   clearly  bound by the actual status
         of his case.     There is nothing in the record
         going to show that Volkor ever at any tim3 nndo
         inquiry of any psrson or of any court official
         in respect of the then pending ca3e ageinst
         hFn in.the district    court   for Douglas County.

                          .
                 .            .
Honorable   0. a,   S. Fllingson,   Page 10


     The relator*s  contentlzn   of his ignorance of
     the status of the case and of its dlspostion,
     under the facts before US, affords    no grounds,,-
     for his discharge from the penalty of lmpriso&.
     &ent imposed by t.hs court.    In a similar case
     IA Califcrnis,  the court announced this self-
     evident rule:

            “‘The essential   part of a sentence of im-
      prisonr;!ent is not the time when it should be
      executed, but the ext.ent of thepunishmont fixed;
      and the expiration    of tima, without imprison-
      ment~. is in no sense an execution    of the sen-
      ten&. f Rx parte Vance,     90 Cal.  208, 27 p. 209,
      13 L. .R, A. 574.
            “‘The time  when a nentence of 1mprisoAment     --
      shall   comtenka, alt,hough specified in the same en-
      try, is properly’ no part of the senteAce, and may
      be ohanged by the court at a subsequent term if
      for any reason execution of the sent,ence has been
      delayed. 1 Bcrcatein v. Onited States (C. C. A.)
      254 B. 967, 3 A. L. R. 1569,”
             In th3 cam of Ex parte Vance, 27 P. 209, by the
Supreme Court of California,        a prisoner liable    t3 jail sarv-
ice because of failurs       to pay a fine was allowed to go at.
liber-ty by tha sheriff      without authority.     It was held that
the tim of the prisoner’s         abseAcc from jail in violation
of law could not-ba oonsidered as having spent in jail in
satisfaction      of the jud~gent which required his actual im-
prisonmnt     , It was pointed out that the essential         part of
the judgment v;as not the time when it should be executed
but ths extent of the punishTent fixed.           IA the case of-
Te rroll v , Xi&As,       46 So. 727, befor:> the Gupr.>ne Court
of Florida,      a defendant had been convicted     and sentenced
to imprisoncent      in ths county jail at hard labor for twelve
months and said period of twelve months had elapsed.              Under
sgreomant of the prosecuting        attorney,   however, he had been
permitted to 80 at liberty        during said period of time.       The
court poiAted out that the prisoner had been at liberty
with his oven consent if not at his own request and that the
time fixed for the col;=eAcem3nt of the execution          of the sen-
tence was not one of its~ essential ,elezents        and strictly
speaking v;as not part of the scnte3Ca at all,          saying that
               .
                            1   .




    Honorable ,O. J. S., Ellingson,   Page 11

.

    the essential    portlon of the sentence is the punishment,
    and that as a rule the eentence with rcferanoe      to the time
    OS punishment and the amount thereof should be striotly
    execut,ed.    ft iS ii@3iA AOted that the Court rather $ressed
    In that case the fact that the prisoner     had been at.,jiberty
    with his own consent and at his own request,
                In opinion No. 2421 by Assistant Attorney General
    I,. C. Sutton, dated I?.a?ch 16, 1922, found at page 171 .of the
    1920-22 Attorney General’s Reports,    the opinisn was expressed
    that in cases of furloughs granted to prisoners    by the Gover-
    nor the question ae to whether the time sgent out on furlough
    should be counted on the sentence as having been served or
    whether it should be counted out %a$ a question to be derived
    trm the proclamation.
                ft’must be borne in alnd that the prisoner was out
    of confinement during the period covered by these two procl.a-
    mations with his O:?A cdment       and upon his own agreement. Re
    stands in a different      light from the prisoner who ha.: been
    taken from jail or the penitentiary       without his consent and
    lncarcernted    else:vhere; as in the C&SOSof ?.%nnesot.a vs. Jor-
    genson, 224 ?I.!f, 156, in Re Jennings 118 Fed. 479, and Schmidt
    vs. Swope, 91 Fed. (2) 260, and such as v;e had un;:er consid-
    eration in our opinion Ro. O-1255.        Under any view which vie
    may take of the proclamations       in question,  it is our oi~lnion
    that the tine, during which Hines Rudson was out of the Peni-
    tentiary   under the same should not be considered a3 tine
    served on his sentence.

                                                Youra very truly
                                           ATTCRNXYGZTEP~LOF TE-XAS
