                     TXXEA'ITORNEYGENERAL
                              OF       TEXAS
                              AUSTXN    11. TEXAS

  WILL      WILSON
AlTGRNLCY     GSNERAI.
                             August    23,   1960

Hon. Charles J. Lleck, Jr.                     Opinion No. W-918
Criminal District Attorney
San Antonio, Texas                             Re: Constitutionalityof
                                                   Art. 5118a,V.C.S.,
                                                   authorizing commuta-
                                                   tion by sheriffs of
                                                   sentence of persons
                                                   confined in county
                                                   jail.
Dear Mr.     Lleck:
              This office is in receipt of your recent request for
an opinion as to the constitutionalityof Article 5118a, Vernon's
Civil  Statutes.    The essential portion thereof follows:
              ,,     Commutat%onof time for good conduct,
      Indust ind obedience may be granted the Inmates
      of each county jail by the aherlff~In char e. A
      deduction in time not to exceed one third 7l/3)   of
      the original sentence may be made from the term or
      terms of sentences wherino charge of misconduct has
      been sustained against the prisoner. A prisoner
      under two (2) or more cumulative sentences shall be
      allowed commutationas if they were all one sentence.
      . . .II
            The constltutlonalltyof the statute depends upon the
 conetruc$ionplaced thereon in light of Article IV, Section 11,
 of the Texas Constitution,as follows:


               "In all criminal cases, except treason and im-
         peachment, the Governor shall have power, after con-
         viction, on the written signed recommendationand
         advice of the Board of Pardon8 and PaFole8, or a
         majority thereof, to grant reprieves and commutations
         of punishment and pardons; and under such rules as the
         Legislaturemay prescribe, and upon the wrjtten recom-
         mencjationand advice of a majority of the Board of
         Pardons and Paroles, he shall have the power to remit
         fines and forfeiturea. The Governor shall have the
         power to grant one reprieve in any capital case for
Hon. Charles J. Lieck, Jr., Page 2 (Ww-918)

    a period not to exceed thirty (30) days; and he
    shall have power to revoke paroles and conditional
    pardons. With the advice and consent of the Legls-
    lature, he may grant reprieves, commutationsof
    punishment and pardons In cases of treason."
          11
           . . .tt
            The courts have consistentlyheld that the authority to
grant pardons and paroles and to commute sentences is vested in
the Governor and that It cannot be altered by the Legislature. See
Ex Parte Mlera, 64 S.W.2d 778, (Tex.Crim.App.1933), wherein the
~091% held:
            II      In Snodgrasa v. State 67 Tex.Cr.R. 615,
     150 s.w: i6i, 165, 41 L.R.A. (N.S.) 1144, this court
     defined a pardon as follows: 'A pardon, however Is
     held to be an act of grace proceeding from the power
     intrusted with the execution of the laws which exempts
     the individual otiwhom it I.8bestowed from the punish-
     ment the law inflicts for a crime which he has com-
     mitted.' The pardoning power Is 'inherentIn sovereignty,
     and may be lodged wherever the people determine. However,
     if once it has been conferred by the Constitution,it
     cannot be exercised by the Legislature. Underwood v.
     State, 111 Tex.Cr.R. 124, 12 S.W.(2d) 206, 63 A.L.R.
     978; Ex Parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 2'3.
     Section 11, article 4, of our Constitutionexpressly
     confides to the Governor of the state 'power after
     conviction,to grant reprieves, commutationsof punish-
     ment and pardons.' Nowhere in the Constitutionis there
     any remission of such power to the legislativeor
     judicial blranchesof our government. It is observed
     that the power to pardon granted to the Governor Is
     to pardon after conviction,and that the Legislature
     is without authority to give to others the power to
    ,pardonafter conviction. Snodgraas v. State, supra;
     Ex Parte  Muncy, supra. . . *"
           It should be noted that at the time of the opinion in
the Mfera case, the Governor had complete authority to grant
clemency, However, subsequently,in 1936, as a result   of the
lndescrlmlnateuse of such power by some governora, the conetitu-
tional provision was amended to require the recommendationand
advice of the Board of Pardons and Paroles prior to the governor's
exercise of such power. (See "InterpretiveCommentary"following
Article IV, Section 11, V&non's Annotated T&as Conetiutlon.)
           The courts have jealously guarded this power of the
governor from any encroachmentby the Legislature or judicial
branch of the government. See Ex Parte~~l~~s,supra, and the
cases cited therein.
Hon. Charles J. Lieck, Jr., Page 3 (W-918)

             In Ex Parte Anderson, 192 S.W.2d 280, (Tex.Crim.App.
      ), the court considered the constitutionalityof Article
           V.C.S. which states, In part, as follows:
                    Commutation of time for good conduct,
       indust& &ii obedience shall be granted by the
       General Manager and twenty (20) days per month
       deduction shall be made from the term or terms of
       sentences of all prisoners In Class I . . . and
       ten (10) days per month deduction shall be made
       from the terms of sentences of all prisoners In
       Class II . . . .'I
           The Court of Criminal Appeals held the Act to be con-
stitutional and In so dolq distinguishedthis type of commutation
from that which is a mere act of grace of the sovereign:”
             "The power of the Legislature to authorize,
       by statute, reduction of sentences of convicts for
       good conduct is generally accepted. That power
       rests upon the fact that the commutationis allowed
       as a reward for the good conduct and behavior of a
       prisoner. 41 Am.Jur., p. 914, sec. 41. So then, In
       order for a convict to be entitled to commutation,he
       must first earn It in accordance with the statute
       and the requirementsthereof.
             "A statute that extends to convicts commutation
       of sentence as a mere gift or as a matter of clemency
       would be violative of Article 4, Sec. 11, of our State
       ConstitutionVernon's Ann.St., which places the matter
       of'clemency to convicts exclusively in the hands of
       the Board of Pardons and the ffovernor of this State.
             "The fact, then, that a convict must first earn,
       by his own conduct, commutationextended by the Legis-
       lature Is a distinguishingfeature. CommutationIs
       earned by the convict. Clemency is extended as an act
       of grace by the authoritieshaving that power under
       the Constitution."
           By applying the foregoing authorities to Article 5118a,
V.C.S., we are constralnedto hold that the statute is constitu-
tional. The only essential difference between Article  6184-1,
V.C.S., which was held to be constitutionalin the Anderson case,
SUP    and Article 5118a, V.C.S., l.8that in the l&%ter,'the
aheF"'
    iff is'glven the discretion of giving a prisoner a deduction
In time even though he has a record of good eonduct. This simply
me@   that where a prisoner has an unquestionedgood conduct
regprd, the sheriff is not under a duty to release him In less
timf than called for in the sentence. Thus, the crucial question
Hon. Charles J. Lleck, Jr., page 4 (w-918)

is whether this kind of discretion Is within the prohibition of
Article IV, Section 11, of the Conatltutionas Interpretedby
the Anderson case, eupra.
           The only act prohlbited by the Anderson case, supra,
is the release of a prisoner when he has not earned a commutatlon
In accordance with the statute; that Is, by exhibitinggood conduct.
Article 5118a, V.C.S. plainly requtrea good conduct as a basis for
commutation. Thus the sheriff can only commute a sentence where
the same facts exist as required by Artiole 6184-1, V.C.S. The
fact that the Legislature has given him the rl ht to not commute a
sentence, can in no way InvalidateArticle 511fa, V.CT     By not
commuting a sentence, he cannot be said to have exercised clemency.
Conversely,neither can he exercise clemency where he oommutes a
sentence on the basis of good conduct. Therefore, Article 5118a
must be held to be constitutional.

                            SUMMARY
           Article 5118a, V.C.S., granting the sheriff
     the authority to commute the sentences of county
     prisoners upon good behavior, la not In oonfllct
     with Article IV, Section 11, of the Texas COnStl-
     tutlon, which vests olemenci power In the Oovernor
     and the Board of Pardons and Paroles.
                                  Yours very truly,

                                  WILL WILSON
                                  Attorney General of Texas



                                      Dotild R. Bernard
                                      A,saistant
DRB:ljb
APPROVED:
OPINION COMMITTEE:
W. V. QEPPERT, Chairman
Ceoi.1Cammack
Ralph R. Rash
Lawrence Hargrove
REVIEWED FOR THE ATTORNEY GENEF&AL
BY   Leonard Passmore
