                                                            R-773
                                                                    :’,,! 1
                                                           .“-
                                                           5        aji:
                               OFFICE        OF

                  THE A~T.~~NEYY              GENERAL

PRICE  DANIEL                                                FAGAN DICKSON
AmtnwKY GENERAL            October 28, 1947                   RPST UclIlllANT



          State Board of Pardons & Paroles
          Austin, Texas
          ATTW: Hon. Walter C. Strong, Member
                                    Oplnlon No. v2415
                                   Re: Cons~ltutlonalltyand
                                        constructionof Ii.B.
                                       ~120, 50th Legislature
          Dear Sir:
                    You have requested our opinion relative to
          various matters arising by virtue of the "Adult Pro+
          batlon and Parole Len" passed by the 50th Legislature
          (H. B. 120). We will restate your questions end an-
          swer each question immediatelyfollowing each re-
          statement. We will then proceed with a general dls-.,
          cusslon as to our'constructlonof the Act and the l&w
          upon which we based our ::qswers;
                    Question No. 1"'.Ia Section 12 of H. B. 120,
          50th Legislature,constl~~~tlonally valid tid does It
          supersedethe constitutionalamendment that designates
          paroles as reprieves?
                   .We know of no constitutionalamendment that
          designatesparoles as reprieves. In fact, a parole is
          not a reprieve or any form of executive clemency. Sec-
          tion 12 of said Act Is therafore not unconstitutional
          as being in conflictwith Section 11 of Article Ip of
          the Constitutionof Texas.                .

                    Question No. 2: Reprieves having been con-
          sidered by the'pr&vious penitentiaryofficialsas pa-
          roles, Is the,Board of Pardons and Paroles under H. B.
          120 to consider such~terms,I*eprleves and paroles, as
          synonymous?
                    The Board of Pardons and 'Parolesshould not
          consider reprieves and garole, as being synonymous.
$1:   82
           State Board of Pardons and Paroles, Page 2 (V-415)


                     Question No. 3: Sections 1 to 7 inclusive
           have reference to probation. Section 1 states "the
           courts of the State of Texas having original jurls-
           diction of criminalactions, etc." Does this include
           corporationcourts, justice courts, and county courts
           in criminal cases for misdemeanors;and do such courts
           have the right to probate persons convicted therein?
                     Corporationcourts, justice courts, and coun-
           ty courts do not have'the authority under this Act to
           place persons convicted in such.courtsunder probation.
                      Question No. 4: Se&i&'7 states that the
           Board of Pardons.andParole& created by the Constitu-
            tion of this State shall administer the provisions of
            this Act and &hall act as the State Board of Proba-
            tion as authorizedby Section lla, Article IV, of the
            Constitution. Section 8 provides for a method for se-
            lection of the Board members by creating a committee,
            examlnirigapplicants. Wewould like to know whether
            or not these two sections are ln conflict with the con-
           'stltutlonalamendment,Section 11, Article IV, creating
           the Board of Pi&ions and Parole! and~are they constltu-
            tlonal?
                     We do not find where.% a State Board of Pro-
           bation is mentioned ln Section lla of Article IV of
           the Constitution. Section 7.i~ not In conflict with
           the constitutionalamendmenji, S&c. 11, Art. IV. Al-
           though the Act in said Section 7 provides that the
           constitutionalBoard of Pardons and Paroles shall act
           as a State Board of Probation,we do not find anywhere
           In said Act ,wherelnsuch Board is given any duties to
           perform in reference to probation. Section 8 of said
           Act Is unconstitutionalIn that it Is In conflictwith
           Sec. 11 of Art. IV; for the State Constitutionprovides
           only one qualificationfor members of the.Board of Par-
           dons and Paroles--thatthey "shall have been resident
           citizens of the State of Texas for a period of not less
           than two years immediatelypreceding their appointment."
                     Question No. 5: Does not the reference to
           probation require the trial judge who tries criminal
           cases and puts a defendant on probation to retain jur-
           ~lsdlctlonof the,case and administer same; and that
           the Board of Pardons,and'Parolesshould not take juris-
           diction of such case until the party has violated his
           probation and been committedand received at the peni-
           tentiary of this State?
State Board of Pardons and Paroles, Page 3 (V-415) ic     ‘83


          The ProbationAct does contemplatethat a
prisoner on probatlop la wlthia the cimtlnulng’jurls-
diction of the court of conviction,risslsted, of course,
Srcm time to time as’may be n6cessary ln the enforce-
ment of his jurlsdlctlon,by the proper probation of-
ficer or officers. Of course,, when the probationerhas
lost his status as a probationer,and the gates have
been closed upon him by the officials of the penlten-
Mary or other place of correctionalconfinement,the
Court’s jurisdictionceases. The Judge has performed
his judicial functionsunder the law.
          QtiestlonNo. 6: It will be observed that
this Act does not provide for the appropriationof
any funds so that it could be administeredand, for
that reason, la the Board required to try to adminis-
ter same?
          It 1s the duty of the Board of Pardons and
.Parolesto admlnlster,thlsl+W Insofar as they possibly
can with whatever funds are availableto them..
          Quest& Ho. 7: Seutlon 12 states “the
BMrd is h6reby &tithorized.to r&lease on parole with
the approval of the Governor any person confined In
any Renal or correctionalinstitutionin this State,
etcr Is’thls not ln conflict with the Constltutlon
undiir,
      which the Governor has the authorityto-release
pg$ze;;om the penltentl~~, and there~~~e’unco~tl-

          As stated in our answer to your ‘Questior~HO.
;;‘$z:on   12 1~ not ln conflict with the Constitution
           It provides that the Governor shall have
the powe; after ~convlctlon,on the recommendationOS
the Board of Pardons.and Parole?, .togrant reprieves
+,d comutatlons of punls?ment. and pardons.
          Question No. 8: Section 20 sets out, am~ti
othir thinga, that a paroled prisoner who la amused
of vlolatlng his parole,,~ls
                           entitled to’s hearing and
states when the Board has determined this matter, they
may revoke his parole. Is this not ln conflict with
the constitutionalamendment areatlng the Board OS
Pardons ‘and‘Paroles,and placltigthis duty upon the
Governor of thenState?
          Sections20, wherein’lt attempts to authorize
the Board of Pardons and Paroles to revoke a.parOle
;. -.-
i..-- 84       State.Board,oS Pardons and Paroles, Page 4 (v-415)
           .-,.I


              theretoforegranted, Is unconstltutlqnalln that It J.s
              in conflictwith that portion of aectloti11 of Article
              IV of our Constitution,which provides that "The Gov-
              ernor shall have the power to revoke paroles."
                        Question No. 9: Sectlon 19 authorizes the
              Board to issue warrants for the return of a parolee
              to the penitentiary,upon finding a violation of his
              parole, and that any probation or parole officer or
              any other peace officer may.arrest a parolee without
              a warrant when the parolee has, ln the judgment of
              the parole offJeer or peace officer, violated the con-
              ditions of his'parole. Can this Section of the bill
              legally give such officer the right to make arrests
              as stated therein?
                        Inasmuch as the Governor is the only person
              who can revoke a parole, such parolee Is entitled to
              his liberty under such parole until it has been re-'
              voked by the Governor; and It is our opinion that, un-
              til such revocation,neither probation nor parole of-
              ficers nor any other peace officer may arrest a parolee.
              and deprive him of his liberty by virtue of such con-
              viction, either upon a warrant issued by the Board of
              Pardons and Paroles or without suah warrant.
                        Question No; 10: Section 9 requires members
              of the Board to give full time to the duties of their
              office and to be paid a salary of $6,000 annually. Ho
              appropriationhas been made for thla. Does this en-
              title each member of the Board to a deficiencywarrant
              for the differencebetween the $6,000 and'the salary
              he is being paid at this time, as shown in the Appro-
              priation Bill?
                        House Bill lo. 807,of the 50th Leglslature
              makes the salaries of those officerswhose salaries
              are statutorilyand not constitutionallyfixed at the
              sums appropriatedtherefor for the current biennium.
              The current member salaries are only $4,764.00. There
              csn be no deficiency IS the appropriatedsalaries are
              paid.
                        Question No. 11: Should the Board in making
              its recommendationsfbr clemency to the Governor place
              ln such recommendationsthe conditionsrequired OS the
              parolee, or shoiildthe Governor place such conditions
              ln his proclamations,when the recommendationsdo not
              contain them?
                                                 7 --    85
State Board of Pardons and ParolesI Page 5 (v-4$5)“:
                                                   --


          As stated above, the releasing ,oSa convicted
person on parole fs'not :811
                           act or executive~clemency.
This Act provides that a person who has served the re-
quisite time In the penitentiarymay be released on pa-
role by the Board of Pardons and Paroles upon the ap-
proval by the Governor. The Board, therefore,does
not make recommendationsfor the release on parole--
but should grant the parole by its own proclamation,
snd should incorporatetherein the conditionsrequired
of the parolee, which should be submitted to the Gover-
nor for his approval or disapproval. OS course, such
parole would not become effective until approved by
the Goverpor as provided for In the Act, and accepted
by the parolee.
          Question No. 12: Could the Board make rec-
ommendationsfor clemency Under the cons@tutlonal
amendment creating the Board, which does not refer to
parole, and without consideringthe requirementsreferred
to In the bill with reference to parole?
          Inasmuch as the granting of a parole'is not
the -tit&g of executiye clemency, the Board ii mak-
ing'z%Mmmeiidatlons to the,GovernorSor.executlve
clemency--whichln~ludes~reprleves;commutationsof
punl@ment, and pardons--Isnot required to consider ..
any of the prwislons contained in this Act, and may
make In its recommendationsany condition or conditiona
not Illegal, immoral or Incapable of performance.
          Question No. 13: What is the difference,If
any, with reference to recoannendlng
                                   a reprieve;.a con-
ditional pardon, or a parole? They all have the effeat
of releasinga prisoner f?%mthe penitentiary.
            As stated above, the.Board does not recommeid
a parole.

                     GEN!&U DIS&SSION
          We note that In your first letter   of request
you state "the Board will appreciate an interpretation
of the.Act as a whole;" .so In addition to the answers
above made to your specific questiOns,~and  the dlecusslon
of the reasons for such answers to follow, we wUl at-
tempt to Interpret the Act as a whole as well as the
various sections thereof.
! --’.;   ,,;3&
Ed-               State Board of Pardons and Paroles, Page 6.(V-415)


                            Section 11 of Article IV of the Texas Consti-
                  tution before its amendment in 1936 read as Sollows:
                           "In.all criminal cases, exce t treason
                      and impeachment,he (the GovernorP shall have
                      power after conviction,to grant reprieves,
                      commutationsof punishment and pardons; and un-
                      der such rules as,the Legislaturemay prescribe,
                      he shall have power to remit Sines and Sorfel-
                      tures. With the advice and consent of the Senate,
                      he may grant pardons~In cases of treason;and to
                      this end he may respite a sentence therefor,un-
                      til the close of the succeedingsession of the
                      Legislature;provided, that in all cases of re-
                      mlsslons of fines and forfeitures,or grants of
                      reprieve, commutationof punishmentor pardon,
                      he shall file In the office of the Secretary of
                      State his reasons therefor." (Parenthetical
                      matter ours)
                  Such Section as amended in 1936 reads as Sollows:
                          "There is hereby created a Board of Par-
                      dollsand Paroles, to be composed of three
                      members~,who shall have been-residentciti-
                      sens.of the State of Texas for,a period of
                      not less than-two years Immediatelypreced-
                      ing such appointment,each of whom shall hold
                      office for a termof six years;~providedthat
                      of the members of the first board appolnted,
                      one shall serve for two years, one rorfbur
                      years and one for six years from the first
                      day of February, 1937, and they shall cast
                      lots for their respective.terms. Gne mem-
                      ber of said Board shall be appointedby the
                      Governor, one member by the Chief Justice of
                      the Supreme Court of the State of Texas, and
                      one member by the presiding Justice of the
                      Court of Criminal Appeals; the appointments
                      of all members of said Board shall be'made
                      with the advice and oonsent of two-thirdsof
                      the Senate present. Each vacancy.shallbe
                      filled by the respective appointingpower
                      that theretoforemade the appointmentto such
                      position and the appolntlvepowers shall have
                      the authority to make recess appointmentsun-      ._
                      til the convening of the Senate.
                            "In all criminal cases, except treason
                       and impeachment,the Governor shall have power*
State Board of Pardons and Paroles, Page 7 (v415)i:Z   a7


     after conviction,on the written signed rec-
     ommendationand advice of the Board of Pai?-
     d0n0 ana Paroles, or a majority thereof, to
     grant reprieves and ccmmutatlonsof punlsh-
     ment ana pardons; ana under such rules as
     the Legislaturemay prescribe, and upon the             /
     written recommendationand advice of a m&
     jorlty of the Board 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 exaeed thirty (30)
     days; and he shall have the power to revoke
     paroles and conditionalpardons. With the
     advice and consent of the Legislature,he
     may grant reprieves,commutationsof punlsh-
     ment and pardons in cases oS.treason.
          “The Legislatureshall have power to
     regulateprocedurebefore the Board of Par-
     dons and’Parole8,.
                      and shall require it to keep
     record of Its actions and the reasons there-
     zro& p   shall have authority to enact parole
         .
          The Texas Constitutionwas amended ln 1935 by
addlng Section 1lA to Article IV, which reads as follows:
          “~TheCourts of the State of Texas kav-
     ing original jurlsdlctlonof crtiinal ac-
     tions shall have the power, after convlc-
     tlon, to suspend the imposition or execu-
     tion of sentenceand to place the defend-
     ant upon probation and to reimpose such sen-
     tence, under such conditionsas the Legisla-
     ture may prescribe.”      ,,
We do not find any other provlalons of our State Co~stl-
tutlon that we deem applicableto’House Bill Ho. 120.
          The first six sections of said Act give the
power to the courts of record of the State of $e%as~‘hav-
lng original j~sMtion     of cm-1     actions, in &r-
taln instances,to suspend the lmposltlon or~the execu-
tion of tientenceand placetheconvlcted defendant On
probation for the maXimum period of~the sentence lm-
,posed. Such sections further provide for an lnvestlga-
tlon by a probation and parole officer of thencirca-
stances of the offense, criminal record, social history
c--
2,--   88   .’
            St&e Board of Pardons and Paroles, Page 8 (V-415)


            and present condition of ~thedefendant, as well as
            other matters. It provides that such courts shall de-
            termine the terms and conditions of the probation and
            lists various conditionsthat may be included In such
            probation,and provides that upon the expirationof
            the period of probation such courts by order shall dis-
            charge the defendant. It also provides that having
            dischargedthe defendant, such courts may set aside
            the verdlctorpermit the defendant to withdraw his plea
            of guilty and dismiss the accusation;complaint,in-
            formationor Indictmentagainst him ln a manner very
            similar to that provided for ln the case of a suspend-
            ed sentence. It also provlde~sthat such courts may
            Issue a warrant for the defendant for violation of any
            of the conditionsof the probation and provides that
            such courts shall grant a hearing on the question of
            such violation,without a jury, and may continue or
            revoke the probation,with the right of the probatlon-
            er to appeal the revocation.
                      As stated ln snswer to your third question,
            It is ‘ouropinion that corporationcourts, justice
            courts, and county courts do not have,the authority
            to place persons convicted ln such courts under pro-
            batlon, for the reason that such.courtshave jurlsdlo-
            tlon to try only persons charged with misdemeanors.
            You~wlll note that-both the Constitution(Sec. 1lA OS
            Article IV) and this Act give the courts. the power,
            after conviction,to suspend the lmposltlonor execu-
            tion of sentence and to place the defendant upon pro-
            bation and to reimpose such sentence. . -.” (Under-
            scoring ours). A sentence is imposed only In felony
            cases. See Chapter 3 of.our Code of Criminal Proce-
            dure. Such Chapter provides for a “judgment”and a
            “sentence”,+pfelony cases, but for only a “judgment”
            ln misdemeanorcases. As used In the Constitutionand
            this Act, Is the word y’sentence”to be construedas
            meaning also “.judgment”?We thlnk not. As stated in
            12 Tex. Jur., Par. 355, P. 717;~“Judgmenttinasentence
            are not the same thing; the twoare distinct and in-
            dependent.” Furthermore,both-the Constltutlonand
            this Act state that the courts shall have “the power,
            after conviction,to suspend the imposition. . . OS
            sentence”and then to place the defendant on proba-
            tion. IS “sentencenmeans ‘judgment,  n then the courts
            have the power to suspend the imposing of a judgment
            and then to place the defendant on probation. There
            has to be a judgmentbefore there is a conviction. If
            you do not impose a judgment, that Is,,suspend Its
                                                  c:
State Board of pardons snd Paroles, Page 9 (V-415p-
                                                        89


imposition,you do not have a conviction;and then to
place a derendantunder restraint of his liberty,by
plaolng him on probation,would violate our Constltu-
tion, which provides that:
          %o citizen of this State shall be de-
     prived of . . . liberty, . . . prlvlleg&
           except by the due course of the law
     &'tie land."
You will further note that the followingwords are
used in the Act: "of the sentence imposed";,"might
have been sentenced";"the sentency judge ; %hall         -
be sentenced." E    word "judgment la never used.
          It appears to us that the language used ln
providing for the probation of convicted defendants~
1s clear and unambiguousand therefore needs no con-
structiotrwlth the exception of that portion which ;.
states that the probationer,In the event his proba-
tion Is revoked, may appeal the revocation,  In that
it does not state to whom such appeal will be made.
The followingSection 7 prwides.that the Board of
Pardons and Paroles, created by the Constitution
of this State ln Sec. 11, Art; IV thereof,  shall ad-
minister the provisionsof this Act snd shall also
act as the State Board or Probation, The Legislature
may have intendedthat the probationerwould have.the
right to appeal the revocation,tosuch State Board
of Probation;but, ln the absence of language so
stating,we are l.ncll.n&dto the view that such appeal
should be made to the Court of Criminal Appeals as
that Court has been granted appellate jurisdiction
In all criminalm@ters.
          The only question that arises Ln our minds
as to the authorityof the LeglFjlature to give the
courts of this State the right to release on proba-
tion a person who has been convicted of a criminal
offense is the question as to whether or not such
release on probationwould conflict with the consti-
tutionalpower granted to the Governor, after eon-
victlon, to grant reprieves and commutations:oS
punishmentand pardons. OS course, if such release
on probation Is a reprieve or a cOmmutatlOnof pun-
ishment or a pardon, then such action granting such
power to the District Court would be unconstltutlonal
In that such power .hasbeen granted by the Constltu-
tlon exclusivelyto the Governor of this State. The
       ic   go   State Board of Pardons.andParoles, Page& (V-415)


                 same would be true as to the portion of this Act, which
                 will be hereinafterquoted, which gives the Board of
                 Pardons and Paroles authority to release a convicted
                 person on a parole with the approval of the Governor
                 IS such parole is either a reprieve, commutationof
                 punishment,or pardon. Hence our dlacusslonas to
                 whether or not this act,lriglvingthe courts author-
                 ity to release a person on probation Is in conflict
                 with Section 11 of Article IV of our Constitution,
                 will likewiseapply to those provisions giving the
                 Board of Pardons, with the approval of the Governor,
                 theright to release.convlctedpersons under a parole.
                           A pardon 1s an act of grace proceeding from
                 the power entrustedwith the execution of the laws,
                 which exempts the lndlvldualon whom it 5.8bestowed
                 from the punishment the law .lnSlictsfor a crlisehe
                 has .commltted.Young v. Young, 61 Tex. 191; Ex Parte
                 Rice, 162 S. W. 891. There are several kinds of par-
                 dons; thus a pardon may be full and uncondltlox+;'
                 partial or conditional. Cam v. State, 19 Tex. App.
                 635; A pardon Is condltional:.where it does not become
                 operativeuntil the grantee has performed some apecl-
                 Sled act, or where it becomes void when some speclfled
                 event transpires. Snodgrass v. State, 150 S. W. 162.
                           Commutationof punishment Is the change of
                 a punishmentto which a person has been sentencedto
                 a less severe one. gnodgrass v. State, 150 S. W. 162.
                           A reprieve 1s the withdrawingof a sentence
                 for an interval of time whereby the executlonthere-
                 of is postponed to a day certain. Snodgrassv. State,
                 150 s. w. 162.
                           A parole Is the conditionalrelease of the
                 convict before the expiration of his term, to remain
                 subject, during the remainder thereof, to supervlsion
                 by the public authority and to return to lmprlsonment
                 on violation of the condition of the arole.
                 of Prison Commissionersv. DeMoss, 16;'s. w. l%"'"
                 The Court In-Corn.Rx. Rel, Banks v. Cain, reported In
                 143 A.L.R., p. 1473, held that the power of parole
                 ofasan adminlstratlvefunction whidh does not impinge
                 upon the judicialpower of‘sentencingthe accused in
                 conformitywith the law; that the sentencewas in no-
                 wise interferedwith; that the parolee was not dis-
                 charged but merely serves the remainder of his sentence
                 by having his llberty.restra+nedin a manner ana&OgOus




.,-.
State Boapd of Pardons and Paroles, Page 11 (V-415k-
                                                    :I-   ~~.$I


to that emp1oyed.M the "trusty"or '%onor"'systemof
prison discipline;and that a Parolee was merely serv:
ing his time outside the prison walls which was In
legal effect imprisonment. The Court further stated
as Sollows:
          "A parole, . . . does not obliterate
     the crime or forgive the offender. It is not
     an act of clemencybut a penologlcalmeasure
     for the UlscipUnary treatment of prisoners
     who seem capable of rehabilitationoutside
     or prison walls.  It does not set aside or
     affect the sentence;the convict remains in
     the legal custody of the state and under the
     control of Its agents, subject at any time,
     for a breach of condition,to be returned
     to the penal Institution. Neither Is a pa-
     role a commutationof sentence within the
     meaning of that term In the constitutional
     provision."
           The Constitutionconfers upon the Leglsla-
t-e the power to define crimes and fix the punishment
thereror. This Act does not authorize the courts or
the Parole Board to suspend any law of this State; but
the Legislaturehas provided that in certain contlngen-
.cles,as part of the fixed punishment,the convicted
defendant in felony cases may serve a portion of his
 sentenbe outslde the prison walls. This Act should be
applied to and read Into each and every article or the
penal code fixing unlshment for felony offenses. See
Baker v. State, 15t;S. We.998.
          We are of the opinion that both the.probatlon
and parole provisions of the Act in question constitute
part of the punishmentprovided by the Legislatureto
be inflictedon those who offend agalnst~ourcriminal
laws. To illustratein reference to the burglary stat-
ute, as was done by the Court in the Baker case,.supra,
since the passage of H. B. 120, 'suchstatute now reads
as roiiows:
          'The offense of burglary Is constltut-
     ed by.enterlnga hou8.eby force with the $n-
     tent to commit the crime of theft, and the
     punishment~forthe crime shall be lmprison-
     ment In the penitentiarynot less than two
     nor more than twelve years, provided that
     IS before trial the person charged with the
i::   ,@
           St&e Board of Pardons and Paroles, Page 12 (v-415)


                offense shall request In writing that the
                issue of whether or not he has ever before
                been convicted of a felony shall be submitted
                to the Jury, and If the jury shall find that
                such person ought not in any event be confined
                In the penitentiaryfor a longer time than
                five years, and has never before been conyict-
                ed of a felony,'they may in their verdict fur-
                ther find that no punishment shall be assessed,
                If within a given,periodof time he commits
                no other offense against the laws of this.
                state; but in the event he shall commit another
                offense, then he should be punished by confine-
                ment in the penitentiaryfor a given period of
                time as stated in their verdict, and provided
                further, when it shall appear to'the satisfac-
                tion of the Court that the ends of justice and
                the best 'Interestsof the public as well,as
                the defendant will be subserved thereby, the
                court shall have the power after convictionor
                a plea of guilty, and where the maxlmum punish-
                ment assessed the defendant does'not.exceedten
                years Imprisonment,and where the defendanthas
                not been previously convicted of a felony, to
                suspend the Impositionor the execution of sen-
                tence end place the,defendant on probation for
                the maximum period of the sentence Imposed, in
                accordancewtth the ternis'andprOViSiOnS of
                H. B. 120, Fiftieth Legislature of Texas, Andy
                provided further that the Board of Pardons and
                Pkroles.is authorizedto release on parole with
                the approval of the Governor after he has been
                confined In any penal or correctionalin&i-
                tutlon in this State, and after.he has served
                one-third of the maximum'sentenceimposed, In
                accordancewith the provisions of:H. B. No.
                120 of the Fiftieth Legislature.
                     You will also note that the Se&ion   il of Article
           IV of the Texas Constitutitinas amended in 1936 gave the
           Legislaturethe authority to enact arole laws. You
           will further note that paragraph (iP under Sec. 36 of
           the Act In question defines "ExecutiveClemency" to mean
           a "pardon,commutationof sentence, reprteve, remission
           of fine or forfeituregranted by the Govern05 or any of
           these, but not arole or any form of parole, and that
           in paragraph (JP under Sec. 36 It defines probation as
           the release of the convicted defendant by a court under
           conditionsimposed by the cotit. Thus we find that the
 State Board of Pardons and Paroles, Page 13 (V-415)


Constitutionas well as the Legislaturehas construed
the terms 'parole"and "probation"as not to constitute
an act of executive clemency. We have examined the de-
cisions of the courts In other states and find that
they have held that a parole is not a commutationof
punishmentor a pardon. See State v. Duff, 144 Iowa
142, 122 NW 829, 24LRA (NS) 625, 138 Am. St. Rep. 269;
Rx Parte Patterson,94 can. 439, 146 P. 1009; LRA
1915 F. 541; George v. Lillard, 106 Ky. 820, 51 SW
793, 1011; State ex rel. Bottomlr v. District Court.
~~gMo;tb~~:, 237 P. 525; State';. Peters, 43 Ohio St.
   3        .
           The Court of Criminal Appeals In Rx Parte
 Black, 59 S. W. (2d) 828 held that a proclamationof
 the Governor which was termed a "furlough"and which
 merely postponed the time of servIngtithesensencewas
.actuallya 'reprieve"and was not a parole. The
 Court further held that a parole in Its legal aspect
 has no relation to the power conferreduponthe Gov-
 ernor in Sec. 11 of Article IV of the State Constltu-
 tlon to grant reprieves, commutationsof punishment,
 or pardons.'
          Section 8 of the ActIn question creates a
nomination committee for the purpose of certlfylng
to the appointingauthoritiesprovided ln Sec. 11 of
Article IV of our Constitution.persons eligible to be
appointedto the Board of Pardons and Paroles. As
stated above, It is.our opinion that this Section Is
unconstitutionalin that It is in direct conflict
with said Section of the Constitutionwhich-states
that the only qualificationneeded to be eligible to
be appointedto said Board is that the person appoint-
ed shall have been.a resident citizen of the State of
Texas for a period of not less than two years imme-
diately preceding such appointment. 9 R.C.L. 1124;
Dickson v. Strickland (S. Ct.) 265 S.W. 1012.
          Section 9 of the Act provides for the
$~,OOO.OOannual salary of the members of the Board
of Pardons and Paroles and further provides that
the Board shall meet at the call of the chairman
or from time to time as may.be determinedby a ma-
jority vote of the Board, and that a majority of the
Board shall constitutea quorum for the transaction
of all business. This Section is valid. The por-
tion thereof which provides for an annual salary of
$~,OOO.OOis ineffectual,, as stated above, in that
E   94~
          State Board of Pardons and Paroles;Page 14 (V-415)


          H. B. No. 807 limits the salary of the members of the
          Board of Pardons in such amount as is provided for e
          the General AppropriationBill, which is there fixed
          at $4,764.00 for each year of the,'kurrentbiennium.
                    &?&ion 10 pertains to ~theduties of the
          Board of Pardons and Paroles which seems to be clear,
          and unambiguousand needs no Interpretation.
                    Section il merely pkvldes for office quar-
          ters of the Board.
                   Section 12, we feel, should be quoted in
          full. It reads as follows:
                    ?he Board Is hereby authorizedto
               release on parole with the apprwal.of the
               Governor any person confined in any penal
               or correctional,lnatltutlon~in this State,
               except persons-inidersentence of death, who
               has served one-third (l/3) of the e
               sentence.%npoeed,provided that in any .
               case he me9 be paroled after serving fif-
               teen (15)~years. All paroles shall Issue
               upon order of the Board..duly adopted and
               approved by the ffovernor.
                    "Within one year after.hls admISsion
               and at such intervals thereaitiras It may
               determine, the Board shall secure and con-
               sider all pertinent Informationregarding
               each prlsoner, except any under sentence
               of death, including the circumstances Of
               his offense, his previous social history
               and criminal record, his conduct, employ-
               ment and attitude In prison, and the reports
               of such physical and mental examinationas
               have been made.
                    "Before ordering the parole of any
               prisoner, the Board may have the,prisoner
               appear before It and intervfew him. e-
               role shall be ordered only for the best in-
               terest of society,not as an award of clem-
               ency; it shall not be consideredto be a
               reduction of sentence or pardon. A prison-
               er shall be placed on parole only when ar-
               rangementshave been made for his proper
               employment or for his maintenanceand care,
                                                 :.-
                                                  -
State Board of Pardons end Paroles, Page 15 (v-415)-   95. -;



    and when the Board believes that.he 18,.
    .ableand willing to Ailfill the obllga:
    tions,of a law abId% cltlzti. ,.Every
     rlsoner while on psrole shall remain In
      e legal custody of the lnstltutlonfrom
    which he was released but shall be amena-
    ble to the orders of the Board.
         "The Board may adopt such other rules
    not Inconsistentwith law as it may seem
    proper or necesssry,wlthrespect to the
    ellgibllltyof prisoners for parole, the
    conduct of parole hearings, or conditions
    to be Imposed upon paroles. Whenever an
    order for parole is Issued it shall recite
    Ihe conditionathereof.
         "It shall be the duty of the Board at
    least ten (lO).daysbefore ordering the pa-
    role of.any prisoner or upon the granting of
    executive clemency by the'Governorto notify
    the Sheriff, the District Attorney and the
    District Ju e in the county,wheresuch per-
               9 cted that such,p@roleor clem-,
    son was conv
    tncy iS belng consideredby the Board or by
    the Governor.
         "If no probation and parole offlcer.has
    been assigned to the locality where a person.
    Is to be.releassdon parole ~orexecutive~clem~
    fncy the Board shall,notifythe chairman of
    the Volunteer Parole Board of such co+y
    prior to the release of such person. The Board
    shall request such Volunteer Parole.Board,in
    the absence of a probation and parole officer
    for informationwhich would hereinbe required
    of such duly appointedprobation and parole of-
    ficer. This shall not however preclude the
    Board.fromrequesting yormation from any
    agency In such locality. (Ukderscoringours)
          Sections 13, 14, 15, 16, 17, .and18 have refer-
ence to the powers and duties of the judges, blstrlct.at-
torneys, county attorneys,,pollceofficers, prison offl-
clals, and Board of Pardons end Paroles In ZWferpXW to
administeringthis law. Thea6 Sections appear to be
plain and unambiguous,and we know of no provision of
the Constitutionwith which they conflict.
State Board $Pardons'and P&roles,.Page,l6.(V-415)~


          Section 19 authorizes the Board,upon a.show-
ing of probable violation of parole to issue a warrant
for the return of any paroled prisoner to the lnstltu-
tlon from which he was paroled. It further provides
that after the isstianceof such warrant the parolee
shall~bedeemed a fugitive from Justice. As stated
above,,theConstltutlonof Texas grants to the Gover-
nor the sole power to revoke a parole., Until the Gov-
ernor has exercised such power,>theparolee Is entitled.
to his liberty. Section 19 Is thereforeuncontitltutlon-
al.
           The first paragraph of Section 20 reads as
follows:
          'Any prisoner whopcommits a felony
     while at large upon parole and who is con-
    'victed and sentenced therefor may be re-
     quired by the Board to'serve such sentencer
     after t$F original.senteneeh?s bten corn-
     pleted.
It ls'our opinion that this portion 6f See. 20 ti uncon;
stitutlonalIn that it makes it'dlscretlonarywith the
Board of Pardons and Paroles as to whether.or.'nota per-   I
son who is convicted and sentencedfor a felony~~hlleat
large upon a parole, will serve such sentence'asimposed
by the Court- after the original sentence has been com-
pleted." The .Leglslaturehad the authority, as here-
tofore stated, to grant to the.Board the authorityto
release a prisoner under a parole, as such act does not
amount to executive clemency; but it does not have the
authority to vest in an administrativeboard the power
to determ+e the tIniswhen a person convicted of a penal
offense will be required to serve his sentence. Whether
the sentences shall run concurrentlyor cumulatively
is a judicial function.
          The follow~~~~portlonof Section 20 attempts
to give the Board of Pardons and Paroles the authority
to revoke paroles. As heretofore stated, this power
has been conferredupon the Governor by the Constitu-
tion of Texas, and the Legislaturedoes not have the
authority to grant that power to said Board or to any-
one else.
          Section 21 provides that when a paroled prl-
soner has performed the,oblSgatlonsof his parole for
such time~as shall satisfy the Board that his final re-
lease is not incompatiblewith his welfare and that of
State Board of Pa&dons and Paroleti,/Page
                                        17 (V-415fr      f%$


society, the Board of Pardons and Pai?olesmay'make a
final order of dischargeand Issue to'the paroled -
prisoner a certificateof discharge; It ls.our opln-
Ion that Section 21 is unconstitutionalIn that such
order of discharge end the IssuSmce'tothe paroled
prisoner of a certificateof diticharge would In legal
effect amount to a pardon.ln that it would exempt the
person from the unexpiredportion of the punishment
inflictedupon him for the crime he had committed.
As the Constitutionconfers the sole right of grant-
ing pardons to the Gove-or, the Legislaturedoes not
have the ,authorityto grant this power to any other
person 07 board. If the Board has power to reduce the
maximum sentence,by releasing from parole before the
expirationof that sentence,it has power to commute
sentences,which authority,as heretofore stated, has
been placed exclusivelyin the hands of.the Governor
by the Constitution. And to pennit such action on
the part of the Board would clearly interfere with
the lawful judgmentof 6 court. Board of Prison
Com'rs. v. DeMoss KY.) 163 Si W. 183; Woods v. State
(KY.) 169 S. W. 54 ; Crimnonwealth.ofPenn., Ex Rel
Banks v. Cain et al, 143 A.L.R. 1473. .,'
          Stcticin22 proV$des that the~Boar&of Pai?-
~~~ie-'irila'-P~~~~s;'upon
                       requ&st of the Governor,~.shall
invtiiitigate
            and report to the,GoVeTnorIn ~Feference
to'sny person whqJiisbeing-,coxisldered
                                      by the Governor
foYpardon, caaenutation of sentencei reprieve, or r+-
misslomof fine or forfeitureand to make recommenda-
tions thereon. mls Section Is ~J.n  harmony with Sec-
tion 11 of Article IV of our Constitutionand there-        I
fore In all respectsvalid.
          Section 23 of the Act provlde~sfor the
Board appointinga person to the position of 'Di-
rector of Probation and Paroles".anddefines the
duties of,,suchofficer. This Section contemplates
that such officer should receive a salary and per-
form full-timeduties, but the Legislaturehas
failed to make an appropriationfor such salary;
and by reason thereof said S~ectionwill have no
force and effect until such time.as a subsequent
Legislaturemay make such appropriation.
          Sections 24, 25, 26, 27, 28;and 29 pro-
vide for the appointmentof probation and parole of-
fleers and define their duties and powers sindprovide
for their assignment to various courts of the State.
:;_-Y. gfJ
             State Boardcf Pardons and Paroles.,~
                                               Page ,18(V-415)


             It is contemplated from such,Sect$.onsthat these pro-
             bation and parole officers are to be full-time employ-
             ees and receive a salary for their services. &wever ,
             the Legislature has made no appropriationsto pay the
             salaries of such officers and by reason thereof, such
             Sections are ineffectual until a subsequent Leglsla-
             ture appropriatesmonies with which to pay the salar-
             ies of such officers.
                       You will note that in Section 12 of.this.
             Act it is provided that in the event no probation 'and
             parole officer has been assigned to the locality
             where a person is to be released on parole or execu-
             tive clemency, the Board shall notify the chairman
             of the Volunteer Parole Board of,~suchcounty prior
             to the release of such person, and that the Board
             shall request such Volunteer Parole Board, in the
             absence of a~probatlon and parole officer, for in-
             formation which would thereInbe required of such
             duly appointed probatlon~andparole officer; snd
             that Sectlon~fkrtherprovides thatthe Board Is not
             excluded from requesting Information from any agency
             in such locality. We realize that In the absence of
             a paid "Directorof Probation-sndPsrold~,~ and in
             the absence 'orpaid *Probation and-Parole Officers,"
             assigned to the various courts throughout the State;
             and by reason ofthe insufficiencyof,the appropria-
             tions with which to carry out the provisions of this
                                        and Paroles will be handi-
             Act, the Board Of Ps.??dOns~
             capped In their efforts In administeringthis law.
             However, the various Volunteer Parole Boards, the
             county officials, and peace officers will doubtless
             co-operatewith the Board lnevery way and will be
             able, to a great extent, to perform the duties con-
             templated to be performed by these officers.
                       Section 30 of the Act reads as follows:
                      "The provisions of this act are here-
                 by extended to all persons who, at the ef-
                 fective date thereof, are eligible to be
                 placed on parole under the terms of this
                 act with the same force and effect as if
                 this act had been In operation at the
                 time of such person's becoming eligible
                 to be placed on parole.,"
                       It is onr opinion that this provlsion is con-
             StltutiQnal. Although at the time of these prior con-
             victims this parole law was not written into the pre-
             scribed punishment, the Governor upon recommendationof
                                                         99
State Board of Pardons and Paroles, Page 19 (v-415)


the~Board of Pardons and Paroles has the payer, after
conviction,to grant pardons. Sec. 11, Art.,IV, Texas
Constitution. .UMer.thls authority the Governor has
heretofore granted conditionalpardons, which, in
fact, amounted to releasingunder parole~as provided
In this Act. As stated by the Courts, the Governor
has the power to grant a partial pardon and place
any conditionstherein that are not "illegal,im-
moral or incapable of performance." This Act pro-
vides IIIeffect that the parole granted by the Pardon
Board shall not be effectiveuntil approved by the
Governor. Therefore, In approvinga parole granted
to a person convictedbefore the effective date of
this Act, the Governor would be In fact exercising
his constitutional ower of executive clemency.
Woods v. State (KY.7 169 S. W. 558.
          Section 31 pertains to fees paid to vari-
ous officers in criminal cases and provides that'the
placing of a defendant on probation shall be conslder-
ed a flnal dlsposltlonof the case. This Section is
plain, unambiguous,and constitutional. Section 32
pr&'id&s that the .Act shall not begconstrued to pre-
vent or limit the exercise.bythe Governor of the
p6irir'rs'of
          executive clemency. This Section is plain,
unsmblgiuous,and constitutional. Section 33 provides
that this Act shall not apply to parole 'i'ram$nstl-
tutlons for Juveniles... This Section Is plain, unam-
blguous,.andconstitutional. Seatlon 34 repeazs the
old parole law and all laws or parts of laws-in con-
flict with the Act. It sp.eclflcally  provides that.'
this Act shall not be cq&trued.as repealing Arts.
776 through 781 of Vernon's -Annbtat&d.Statutes,
Code of Criminal Procedure,which Is conrmonly.known
as the suspended sentence law. These provlslons are
valid. Section 35 of the Act provides that If any
section, paragraph,part, sentence, clause, or phrase
of the Act be held unconstltutlonal,that it shall
not affect the validity of the remalnder,.andde-
clares that the Legislaturewould have passed each
and every section, paragraph,,part,sqntence, clause,
and phrase of this Act severally. It Is oti opinion
that although, as pointed out above, several sections
or portions thereof are unconstitutional,the valid
portions remaining constitutea full end complete act
within Itself and should be administeredby those en-
trusted therewith.
.1,
=
L-. L&&l     “::
           State Board of Pardons and Paroles, Page 20 (V-4:5)


                     Section 36 deflnee'varlouswords andterms
           used in the Act. We find nothing In these definitions
           which ln any way conflictswith our Constltutlon;but,
           on the contrary, the,definitlonsappear to be ln har-
           mony therewith.



                    House Bill 120, '.0th Leglslature.(Pro-
               batlon and Parole Law7'In granting power to
               courts of record to place a convictedperson
               on probation and in granting power to the
               Board of Pardons and Paroles to release on
               parole a'convlctedperson Is constitutional.
               A parole is not,a reprieve or sny form or
               executive clemency. County courts, corpora-
               tion courts, e&justice courts do not have
               the power, after conviction,to place the
               defends& on'probatlon. Section 8 of said
               Act creating a nomination committee to cer-,
               tify to the appointing authorltlesthose ap-
               pllc~ts~kho are ellggiblefor appointment.'~..
               to'the Board of Pardons and Paroles is uncon-
               stltutionalbecause it is in conflictwith
               Sec. 11 of Art. IV of the Texas Constitution.
               Section 20 of the Act, wherein it attempts to.
               authorize the Board of Pardons and Paroles to
               revoke paroles 1s unconstitutionalIn that it'
               is In conflict with Sec. 11 of Art. IV of the
               Texas Constitution,which provides that "The
               Wizn$r shall have the:power to revoke pa-'
                        Unless and until the Governor re-
               vokes-the parole, the parolee 1s~entitled
               to serve hls"sentence outside the prison
               walls. Each member of the Board of Pardons
               snd Paroles is entitled to receive an annual
               salary of $4,764.00 during the present blen-
               nium. It is the duty.of the Board of Pardons
               and Paroles to administer this Act insofar as
               they ten with whatever funds are available to
               them. The Board of Pardons and Paroles in
               making recommendationsto the Governor for
               executive clemency 1s not required to con-
               sider the provisions of this~Act. Whenever
               a court revokes a probation, the probationer
               may'appeal the revocation to the Court ef    '~'
               CrlmlnaIAppeals. The determinationof.wheth-
               er a sentence under a subsequentconviction
                                                    ;I -’ to*
State Board of Pardonsand Paroles, Page 21 (v-415)";


    shall be cumulativeor concurrent is a
    judicial function,and that portion of
    Sec. 20 of the Act attemptlngto confer
    this power upon the Board of Pardons and
    Paroles is unconstitutional. The Board
    of Pardons does not have the power to dls-
    charge a convictedperson who has been pa-
    roled, before he has served the maxImum
    term of his sentence,as such an act would
    be a pardon; and this power has been vest-
    ed solely in the Governor by the Constitu-
    tion. Persons convictedbefore the effec-
    tive date of this Act are eligible for
    parole by virtue of .the.Governor's par-
    doning power. Except as herein pointed
    out, this Act is constitutional. Sec. 11,
    Art. IV, Tex. Const.; Sec. ZlA, Art. IV,
    Tex. Const.; Snodgrass v. State, 150 S.W.
    162; Baker v. State, 158 S. W. 998; Rx
    Parte Black, 59 S. W. (2d) 828.

                                Yours very truly
                            ATTORREYGERERALOFTEXAS



                                    W. V. Geppert
                                        Assistant
WVG/JCP

                            APPROVEII:


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                            ATTOREEYGEEERAL
