Honorable A. C. Turner             Opinion No. M-981
Chairman
Board of Pardons and Paroles       Re: Authority of Board
Room 501                               of Pardons and Paroles
John H. Reagan Building                to conunutethe Death
Austin, Texas 78701                    Sentence to a Life
                                       Sentence upon reversal
                                       of penalty in a case
                                       by the United States
                                       Supreme Court under
                                       facts presented, and
Dear Mr. Turner:                       related question.
    You have recently requested an opinion on the following
facts:
          "This Board would like to know if it has
     the authority, under the law, to commute the
     DEATH sentence to a LIFE sentence in view of
     the action by the United States Supreme Court
     in reversing the penalty in this case. Can
     this Board act in this case without the ap-
     plication of the inmate for a Commutationof
     Sentence?
          "In view of the ruling of the United
     States Suprene Court in this case, is this
     innate under a DEATH sentence at this time,
     and what action can this Board take under the
     law?
          "Is this Board required to have a hearing
     in the event it has the authority to act in
     this case?
          "Did the defendant request a Commutation
     of Sentence in his action to the Supreme Court
     of the United States?'
     In keeping with our policy of not giving opinions on matters
presently in litigationwe cannot answer your questions regarding
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ttonorableA. C. Turner,   page 2   (M-981)


the Quintana case. However, for your guidance, we will honor
your request for advice in this general area. This advice does
not necessarily control any specific case.
     Article 40.01, C.C.P., provides,
          *In all criminal cases, except treason and
     impeachment,the Governor shall have power,
     after conviction,on the written signed recom-
     mendation and advice of the Board of Pardons and
     Paroles, or a majority thereof, to grant reprieves
     and commutationsof punishmentsand pardons; . . .I
This Article is taken verbatim from the second paragraph of
Article IV, Section 11 of the Texas Constitution.
     The power of the Governor to grant commutationsof punish-
ment after conviction,has been provided in the Constitutionof
Texas from its inception. Although Article IV, Section 11 of
the Texas Constitutionhas been amended, this basic grant of
authority remains unchanged, except it now provides that the
Governor has this power "on the written signed recommendation
a&advice of the Board of Pardons and Paroles, or a majority
thereof".
     This constitutionalpower of the Board of Pardons and
Paroles and the Governor can be exercised at any time "after
conviction,*.In this context the phrase "after conviction"
means after a finding of guilty. As Stated by the Court in
Snodqrass v. State, 150 S.W. 162 (Tex.Crim.19121,
         I       Under the connnonlaw, a person was
     said t; be'convictedof the crime when verdict
     was rendered thereon adjudginghim guilty, . . ."
     (at p. 172).
         I . . .
         *       The foregoing references show that
     the orkAa& meaning of the word 'conviction'is
     the verdict of guilty pronouncedby a jury. . .I
     (at p. 173).
         I . . . Thus it is seen that the terms 'after
     conviction' in our Constitutiondo not embrace the
     sentence, but simply mean the determinationof


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Honorable A. C. Turner, page 3   (M-981)



    quilt by the tribunal authorizedto try the issue
    of quilt or innocence of a defendant,and the
    person becomes subject to pardon whenever that
    issue is finally determined.' (at p. 174).
     This interpretationis supported by the language of
Article IV, Section llA, added to the Texas Constitutionin
1935. Section 1lA granted authority to the Courts of Texas
having original jurisdictionof criminal actions to suspend the
imposition or execution of sentences and place defendants on
probation *after conviction". In Article IV, Sections 11 and
1lA of our Constitution,the term *after conviction"means only
that the defendant must have been found guilty. The executive
power to commute attaches as soon as punishment is assessed,
without regard to whether the conviction is on appeal or has
become a "final" conviction. Davenport v. State, 78 S.W.Zd
605 (Tex.Crim.1935); Goss v. State, 298 s. . 585 (Tex.Crim.
1927); 138 ALR 1162, 1164.
     Therefore, even though a death penalty convictionmay be
on appeal, the executive power to commute that death sentence
to life imprisonmentexists. Even though the United States
Supreme Court may reverse a judgment insofar as it imposes
the death penalty and remand the case back to the Texas Courts
for further proceedings in conformitywith its judgment, unless
and until the Texas Court takes final action on the case, it is
still a conviction subject to the executive power to commute.
          'Commutationof sentence means the change of
     the punishment assessed to a less severe one. It
     differs from a pardon in that it may be imposed
     without consent of the convict or against his will."
     EX Parte Lefors, 303 S.W.2d (Tex.Crim.1957).
     The Board of Pardons and Paroles can recommend to the
Governor that a death sentence be commuted to life imprisonment,
and the Governor, pursuant to such recommendation,can commute
the sentence without consent of the convict. Neither do we find
in our laws any requirementthat the Board of Pardons and Paroles
conduct a hearing before it recommends commutationnor before
commutation is given.
                       SUMMARY
                      --w-e--
          The questions regarding a specific case
     presently in litigation are unanswered. However,
     the Board of Pardons and Paroles generally can

                             -4786-
Honorable A. C. Turner, page 4 (M-981)


       recommend and the Governor, baaed on such
       recoasmndation,can commute a death sentence
       to life imprieonmanteven though the conviction
       is on appeal and has not been finally determined
       by the Texas Courts. The Board and Governor
       may do the sama even though the United States
       Supreme Court may reverse a judqmant insofar as
       it imposes the death penalty and remands the
       case to the Texas Court for further proceedings
       in conformitywith its judgment,so long as the
       Texas Court has taken no final action in the case.
                                   n
                                R{$ectfully submitted,
                                            B
                                            7 '
                                              G!v
                                       RDC.RARTI F
                                       ey General of Texas
Prepared by W. Barton Bolinq
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Dunklin Sullivan
Gordan Caaa
Sam Jones
Bob Lattimore
SAM XDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLAWRITE
First Aaaistant




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