             THE   ATTORNEY           GENERAL
                        OF   TEXiW3


                        September 2, 1988



Mr. Henry B. Keene           Op.inion No.   JM-950
Chairman
Board of Pardons and         Re: Constitutionality of section
   Paroles                   27 of article 42.18 of the Texas
P. 0. Box 13401              Code of Criminal   Procedure  re-
Austin, Texas   78711        garding contracting   for parole
                             services, and related questions
                             (RQ-1477)

Dear Mr. Keene:

     The questions you ask involve the constitutionality
of section 27 of article 42.18 of the Code of Criminal
Procedure.  Section 27 of article 42.18 provides:

            (a) The Board of Pardons and Paroles
        shall reouest     nronosals and   may    award
        contracts to district probation   offices to
        provide, parole services to persons   released
        to the supervision of the board. The board
        may award a contract under this section     if
        the board determines that:

            (1) the district probation    office pro-
        posing to enter into the contract can provide
        qualified  officers, types and levels      of
        supervision, and a reporting system that are
        acceptable to the department: and

            (2) the services can be provided    at a
        cost that is not less than 10 percent   lower
        than the cost to the board of providing   the
        same services.

           (b) A contract entered into          under   this
        section must contain:

            (1) a requirement    that the   district
        probation office provide qualified officers,
        types and levels of supervision,     and
        reporting system that are acceptable to th:
        board: and




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Mr Henry B. Keene - Page 2   (JM-950)




            (2) a provision authorizing the'board  to
        monitor the performance    of the    district
        probation office to determine if the office
        is in compliance with the contract.

           (c) The board shall specifically   request
        the district probation office serving Tarrant
        County and the district probation      office
        serving Potter County to enter into a con-
        tract under this section.     If a district
        probation office submits a proposal     under
        this subsection that is acceptable    to the
        board under the standards, terms, and condi-
        tions of this section, the board shall award
        the office a contract with a duration of two
        years.   (Emphasis added.)

     You ask the following questions:

            1. Is Vernon's Ann. C.C.P. Article 42.18,
        Section 27 unconstitutional   because it vio-
        lates the separation of powers doctrine     to
        require the Board of Pardons and Paroles to
        contract with district probation      offices,
        specifically the district probation    offices
        of Tarrant County and Potter County,        to
        provide parole services to persons    released
        to the supervision     of the Board when a
        'proposal' is acceptable   to the Board under
        the standards, terms      and conditions    of
        Vernon's Ann. C.C.P. Article 42.18, Section
        27?

           2. Does Vernon's Ann. C.C.P.         Article
        42.18, Section 27 violate the separation      of
        powers doctrine    (Vernon's Ann. Tex. Const.
        Article XI, 5 l), by authorizing the judicial
        branch to usurp or otherwise circumvent      the
        exclusive   authority    to determine    parole
        granted to the Board of Pardons and Paroles
        by Vernon's Ann. Tex. Const. Article IV, 4 11
        land Vernon's Ann. C.C.P. Article 42.18 since
        probation officers will be required to take
        the following actions as a part of their
        duties   in supervising    persons under     the
        Board's jurisdiction:    (1) :.nvestigate/report
        violations of the conditions of parole,      (2)
        give recommendations    regarding the issuance
        of pre-revocation warrants or to continue     on
        parole with or   without  modifications   and/or




                             P. 4796
Mr   Henry B. Keene - Page 3   (JM-950)




         the imposition of sanctions:        (3) provide
         proof at an administrative release revocation
         hearing that a parolee violated the condi-
         tions of parole as alleged; (4) give recom-
         mendations as to what final action should be
         taken by the Board   (either to revoke parole
         or continue under      supervision)   and    (5)
         recommend the withdrawal of a pre-revocation
         warrant at any stage of the          revocation
         process prior to the hearing?

             (3) Does Vernon's Ann. C.C.P. Article
         42.18, Section 27 violate the separation    of
         powers doctrine   (Vernon's Ann. Tex. Const.
         Article XI, § l), by authorizing the judicial
         branch to usurp or otherwise circumvent    the
         exclusive authority of the Board of Pardons
         and Paroles to recommend pardons      to the
         Governor under Vernon's Ann. Tex. Const.
         Article IV, § 11 and Vernon's Ann. C.C.P.
         Article 48.01 since Probation officers will
         be required as a part of their duties       in
         supervising persons under the Board's juris-
         diction to investigate   full pardon applica-
         tions and to make a recommendation    to the
         Board of Pardons and Paroles as to whether   a
         full pardon should be granted in a particular
         case or not?

Without further analysis, we will assume that you are
correct in your conclusion that a district probation office
is a part of the judicial branch. All of your questions
involve the separation   of powers doctrine   set forth in
section I of article II of the Texas Constitution     which
provides:

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




                               P. 4797
Mr Henry B. Keene - Page 4   (JM-950)




     In Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim.
APP. 1987) the court addressed    the separation of powers
doctrine.  In Meshell the court stated:

           Article II, 0 1, in a single, tersely
        phrased paragraph, provides that the consti-
        tutional division of the government       into
        three departments (Legislative, Executive and
        Judicial) shall remain intact, 'except in the
        instances herein expressly permitted.'    This
        separation of the powers of government     en-
        sures 'that a power which has been granted to
        one department of government may be exercised
        only by that branch to the exclusion        of
        others;' Ex carte Giles, 502 S.W.2d 774, 780
        (Tex. Cr. App. 197&), citing Snodsrass      v.
        State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912).
        The separation of powers doctrine    therefore
        requires that 'any attempt by one department
        of government to interfere with the powers of
        another is null and void.'     Giles, surea,
        citing Ex carte Rice   72 Tex.&.ti. 587, 162
        S.W. 891 (1914).----I
                                                              -,
           Although one department has occasionally
        exercised a power that would otherwise     seem
        to fit within the power of another depart-
        ment, our courts have only approved those
        actions when     authorized by    an    express
        provision of the Constitution.     See, mt
        Government   Services I      Underwriters
        Jones, 368 S.W.2d 560 ;:;x. 1963)     (Legis
        ture could provide   for legislative   continu-
        ance under express power to establish     rules
        of court in Article V, § 25,     of the Texas
        Constitution); Ex carte Younablood, 251 S.W.
        509 (Tex.Cr.App. 1923) (Legislature could not
        delegate contempt power to committee      under
        limited power of Article III, § 15, of the
        Texas Constitution).

     Section XI of article IV of the T:-:xasConstitution as
amended at the general election Or,     November   8, 1983,
provides:

            1. The Leoislature shall bv law establish
        a Board of Pardons and Paroles and shall
        mre     it to keen record of its actions   and
        the reasons for its actions. The Leaislature
        shall have authority to enact narole laws.



                             P. 4798
Mr Henry B. Keene - Page 5   (JM-950)




          In all criminal cases, except treason and
       impeachment, the Governor    shall have power,
       after conviction,    on the written       signed
       recommendation and advice of the Board of
       Pardons and Paroles, . or a majority    thereof,
       to grant reprieves      and commutations       of
       punishment and pardons: and under such rules
       as the Legislature may prescribe, and upon
       the written   recommendation and advice of a
       majority of the Board of Pardons and Paroles,
       he shall have the power to remit fines and
       forfeitures~. The Governor shall [have] the
       power to grant one reprieve     in any capital
       case for a period not to exceed thirty       (30)
       days; and he shall have power to revoke
       conditional pardons.    With the advice and
       consent of the Legislature,      he may grant
       reprieves,   commutations   of punishment     and
       pardons   in cases of treason.         (Emphasis
       added.)

     Following the 1983 amendment, the legislature   enacted
Senate Bill No. 589 (article 42.18 of the Code of Criminal
Procedure), Acts 1985, 69th Leg., ch. 427,   § 2,  effective
September 1, 1985, designating   the Board of Pardons and
Paroles as the agency to handle matters      of parole and
mandatory supervision.  Code Crim. Proc. art. 42.18, § 1.

     Section 2 of article 42.18         defines   "parole"   and
"mandatory supervision" as follows:

                'Parole'        the release of     an
        eli:ible prisonerm~~~~  the physical  custody
        of the Texas Department of Corrections     to
        serve the remainder of his sentence under the
        supervision   and control of the Board of
        Pardons and Paroles.    Parole shall not be
        construed to mean a commutation of sentence
        or anv other form of executive clemencv.

           b. 'Mandatory supervision'     means  the
        release of an eligible prisoner     from the
        physical custody of the Texas Department  of
        Corrections but not on parole, to serve the
        remainder of his sentence under the super-
        vision and control of the Board of Pardons
        and Paroles. Mandatorv   sunervision mav not
        be construed   as a commutation  of sentence
        or   v th r f rm of executive clemencv.
        (ErniEasPs zddez.)   .




                             p. 4799
Mr Henry 5. Keene - Page 6   (JM-950)




     'A parole is distinguished from a pardon in that a
parole does not end a prisoner's   sentence but simply pro-
vides a different  manner of serving the sentence than by
confinement in a prison, whereas a pardon       exempts the
prisoner from punishment.  44 Tex. Jur.ld Pardon. ReDrieve,
Commutation 5 2.

     In Rose v. State, 752 S.W.2d 529 (Tex. Crim. 1987), the
court held that the instruction on the law of parole in the
charge of the court to the jury given pursuant to section
4(a) of article 37.07 of the Code of Criminal Procedure   is
unconstitutional as violative  of the separation of powers
doctrine.

     In reaching this conclusion, the court had occasion   to
review the effect of the 1983 amendment to section 11      of
article IV as it related to the statute in question.       In
Rose the court stated:

           Now we must 'first determine whether  con-
        stitutional principles  barring jurors   from
        considering parole laws have survived the
        revision of Article IV, § 11, effective  when
        the voters approved the proposition submitted
        by S.J.R. No. 13 in 1983. 4 Vernon's    Texas
        Session Law Service    1983, at A-158.     As
        revised, 5 11 reads in pertinent part:

              'Section 11. The Legislature shall by
           law establish   a Board of Pardons and
           Paroles and shall require it to keep
           record of its actions and the reasons for
           its actions. The Legislature shall have
           authority to enact parole laws.

           .   .   .   .

           The second sentence in the first paragraph
        of revised .Q 11 is derived from former 5 11
        similarly providing    that the    legislature
        'shall have authority. to enact parole   laws,'
        and we find no indi.:ation that the revision
        is intended to provide a broader scope of
        legislative authority   in regard to parole
        laws than already possessed.   Therefore, con-
        trary to the view of [the] court of appeals,
        that the Legislature retains the authority
        granted in 1936 to enact parole    laws is of
        little importance.    What is crucial is the
        role of the Board, and to that we now turn.




                             P. 4800
    Mr Henry B. Keene - Page 7    (JM-950)



h




                Clemency power is inherent in sovereignty,
           and may be lodged in whole or in part
           wherever    the people determine.        EX Dart
                     502 S.W.Zd 774, 780        (Tex.Cr.Appe
           %'     . S i h v. Blackwell , 500 S.W.2d 97, 100
            (Tex.&.ipE.    1973): E     D         ' r      124
           Tex.Cr.R. 592, 64 S.W.2: 77i:;80";:9:;);         Ex
           parte Muncv 72 Tex.Cr.R.       541, 163 S.W. 29;
           44 (1914); $7 Tex.Jur.3d 263-264,        'Criminal
           Law’    5 4381: 44 Tex.Jur.2d      5-6     'Pardon,
           Reprieve, and Commutation' S 2; Interpretive
           Commentary following Article IV, 5 11.

               In the second paragraph       of § 11,    as
            revised, the Governor retains power to grant
           .and to revoke a conditional pardon, as well
            as all other      clemency powers save      one
            formerly in the Governor.      The effect of
            revised F, 11 is to remove parole eo nomine
            from the clemency power of the Governor     and
            to vest that clemency power to grant and to
            revoke paroles in the Board.      In the sense
            that the Governor, as chief executive, is no
            longer empowered to grant it, parole may 'not
            be construed to be any form of 'executive
            clemency,' Article 42.18, § 2a. But parole
            is an act of grace. Ex carte Lefors, 165
            Tex.Cr.R. 5, 303 S.W.2d 394, 397 (1957);
            united States v. Chasra 669 F.2d 241, 264
            (CA5 1982).    So lona a; it exists and is
            utilized -as    a tool    of punishment     and
            rehabilitation,    jurisdiction,    power   and
            authority over parole must be exercised by
            some officer or agency of government.       See
            and comnare Ex carte Grles, m,       at 780 and
            Smith v. Blackwell      sunra, at 101.      The
            people have decided'in    favor of the Board
            rather than the Governor, and the Legislature
            has effectuated    that decision    in Article
            42.18, V.A.C.C.P.   Thus, parole is an act of
            clemency within the 'exclusive' jurisdiction,
            power and authority of the board. Id., 0 1.

               The caption of S.J.R. No. 13 characterizes
            the Board to be established as \a statutory
            agency,' meaning no more than it is a crea-
            ture of statute. However, since in 1936 the
            Board was elevated to constitutional   status
            in the Executive   Department and the first
            sentence of the first paragraph      in 5 11




                                  P. 4801
Mr Henry B. Keene - Page 8   (JM-950)




       mandates  the Legislature    to establish      a
       Board, we find that, whatever its characteri-
       zation, the Board remains where it has always
       been -- in the Executive     Department.     See
       ;   s, '                           Conti
       Distillino Sales Co., 199 S.W.2d 1009, loI:-
       1013 (Tex. Civ. App. -- Dallas    1947),    writ
       refused n.r.e., 203 S.W.2d 288, 289, appeal
       dismissed, 332 U.S. 747, 68 S.Ct. 26, 92
       L.Ed. 335 (1947). Moreover, the legislation
       implementing   the constitutional   foundation
       for the Board expressly provides that 'it is
       subject to the Texas Sunset Act, but it is
       not abolished under that Act.'           Article
       42.12, § 12a, V.A.C.C.P.,    see now Article
       42.18, M.    See Texas Sunset Act, Government
       Code, § 325.014.    Compare similar treatment
       of Secretary    of State in Article       4330a,
       V.A.C.S. (1987 Pocket Part).

          Therefore,   we conclude that since the
       Board of Pardons and Paroles    is within  and
       part of the Executive Department as contem-
       plated by Article II, 5 1, 'the decision' to
       grant parole, if and when made, is beyond the
       province of the [Judicial, Department] . . .
       and is exclusively     a matter within     the
       [Executive     Department],    under    proper
       regulation by the [Legislative Department].
       Article IV, Section   11.' Beredia v. State,
       and Sanders v. State     both.sunra.   Accord-
       ingly, 'any attempt 'by one department      of
       government to interfere with the powers     of
       another is null and void.' )& narte Giles,
       su?xar at 780; State ex rel. Smith v. Black-
       well. sunra, at 101.

          The remaining question is whether the leq-
       islative mandate  in Article   37.07, § 4(a),
       w,     that the courts 'shall charge the jury
       in writing' the content of instruction   given
       by the trial court in this cause, offends the
       separation of powers doctrine prescribed    in
       Article II, 0 1. Finding the statute is an
       attempt by one department    of government  to
       direct another department  to interfere with
       powers of yet a third department of qovern-
       ment, we hold that Article 37.07, 5 4(a) is
       unconstitutional.




                             p. 4802
Mr Henry B. Keene - Page 9   (JM-950)




           .   .   .   .

          Both the statute and the instruction begin
       with a direct albeit erroneous     statement,
       a:

              'Under the law -applicable to this case,
           the defendant, if sentenced to a term of
           imprisonment, may earn      time  off   the
           sentence imDosed through the award of good
           conduct time.l

        The remainder of the first paragraph in both
        statute and instruction    informs the jury
        generally about factors relevant to awarding
        good time and warranting taking it away.

           The second paragraph   in each adds that
        length of imprisonment might be reduced by an
        award of parole.

            The third paragraph    dictated by    the
        statute reveals to the jury as 'the law
        applicable in this case,' the exact formula
        to determine when this appellant will become
        eligible  for   parole -- 'the actual    time
        served equals one-third    of the    sentence
        imposed or 20 years, whichever      is less,
        without consideration  of any good conduct
        time   he may earn' -- and gives a simple
        example: it points out that eligibility    is
        not guarantee of parole.

           The jury is next informed that one cannot
        accurately predict  'how the parole law and
        good conduct time might be applied to this
        defendant,r because that depends on decisions
        made by 'prison and parole authorities.'

           At this point, however, in the fifth para-
        graph of both the jury is instructed:    'YOU
        mav consider the existence of the parole  law
        and good conduct time.' That is -to say, when
        it comes to assess punishment   the jury may
        deliberate on the content of what has been
        stated in the precedinq~ four paragraphs   in
        making a decision as to the number of years
        it will assess as punishment.




                             p. 4803
Mr Henry B. Keene - Page 10 (JM-950)




           'The evil to be avoided is the considera-
        tion by the jury of parole in assessing  pun-
        ishment.' Clark v. State     643 S.W.2d  723
        725 (Tex.Cr.App. 1982). kather than avoid
        that evil the instruction mandated    by the
        statute directly instructs the jury that    in
        assessing punishment it may consider aspects
        of parole law contained in the instruction.

           It is of no constitutional     consequence
        that thereafter  excluded from consideration
        are 'the extent to which good conduct time
        may be applied to this particular  defendant'
        by the authorities.  Jurors have already been
        instructed that thev may consider the stated
        explanation of parole law and good conduct
        time, yet the Court has consistently held the
        parole law is not for the jury's considera-
        tion. -    ante at 2-4.
               See -,

           The legislative mandate in Article    37.07,
        § 4(a), suvra,  is an attempt by the   Legisla-
        tive Department to      direct the     Judicial
        Department   to interfere with exercise       of
        powers of the Board of Pardons in           the
        Executive Department and, as such it offends
        the separation of powers doctrine in Article
        II, 5 1.   Accordingly we hold that Article
        37.07, 5 4(a) and the    instruction   required
        by it are unconstitutional.     .(Footnotes in
        opinion are omitted.)

Id. at 532-535.

     In your first question, you   ask whether section 27 of
article 42.18 is unconstitutional   "because it violates the
separation of powers doctrine     to require the Board of
Pardons and Paroles to contract with district probation
offices." We do not construe section 27 to require that the
board enter into a contract with district probation offices.
Subsection (a) of section 27 states the board "shall request
proposals and may award contracts" if the board determines
that certain conditions  exist.' Any contra'ct must provide
for qualified  officers and 'Ia reporting system that are
acceptable to the board."     In addition the contract must
authorize the board to monitor the performance        of the
district probation  office to determine    if there  is com-
pliance with the contract.   Subsection (c) further provides
that the proposal  for contract must be acceptable to the
board under the conditions    of this section.    Unlike  the



                             p. 4804
      Mr Henry B. Keene - Page 11   (JM-950)



c..



      parole  law instruction to the jury which allowed         the
      judicial branch to effectively    apply the parole    law in
      assessing punishment, section 27 should not be construed   as
      an attempt on the part of the Legislature     to divest the
      Board of Pardons and Paroles of its authority     to act on
      paroles. Any contract entered into with a probation    office
      would have to be acceptable   to the board. The probation
      offices and their reporting, systems would have to be
      acceptable to the board and the board would have authority
      to monitor the performancs     of the district     probation
      offices. The decision making process    in determining   what
      action is to be taken on a parole remains with the board.
      The separation of powers doctrine would have come into play
      if the legislature had attempted to delegate to the judicial
      branch the authority to apply the parole laws, a function
      given to the Board of Pardons and Paroles by the constitu-
      tion. The legislature has no power to delegate a function
      "which it does not itself possess."  Sun Oil v. Potter,   182
      S.W.2d 923 (Tex. Civ. App. - Austin 1944, reversed on other
      grounds, 189 S.W.2d 482). We do not construe section 27 of
      article 42.18 to permit the judicial branch to encroach    on
      the authority of the Board of Pardons and Paroles in acting
      on paroles.

           In your second question, you ask whether       the per-
      formance of certain duties by district probation      offices
      under such a contract would violate the separation of powers
      doctrine.  You advise that the duties of investigations   and
      recommendations regarding paroles are the duties presently
      assigned to field supervising    officers (who work for the
      board) as promulgated by the board and contained      in its
      Field Services Manual.     Rather than an attempt by the
      Legislative Department to interfere with the powers of the
      Board of Pardons and Paroles in the parole process,       the
      duties you enumerate   are promulgated by the board and the
      offices assigned to perform such functions are monitored
      by the board.   No violation   of the separation   of powers
      doctrine is shown by virtue of the board requiring          a
      district probation office with whom   it may have a contract
      to perform certain duties prescribed by the board relative
      to the parole process.

           In your third question, you ask whether section 27 of
      article 42.18 authorizes  the judicial branch (through its
      probation officers) to usurp the exclusive authority~of .the
      Board of Pardons and Paroles to recommend pardons to -the
      governor under section 11 of article IV of the Texas
      Constitution.  While the amendment to section 11 of article
      IV removed the governor from the parole process it did not
      divest his authority to grant reprieves and commutation  of




                                    P.   4805
Mr Henry B. Keene - Page 12   (JM-950)




punishment and pardons. Nor did the amendment alter the
board's constitutional authority in the pardon process since
the governor may act only "on the written recommendation and
advice of the Board of Pardons and Paroles."

     Section 27 of article 42.18 provides      the Board of
Pardons and Paroles "may award contracts      to a district
probation office to provide parole services."   Section 2 of
article 42.18 expressly provides that "Parole shall not be
construed as commutation  of sentence or any other form of
executive clemency."   We do not construe     section  27 of
article 42.18 to authorize the board to enter into contracts
with probation offices to perform any function relating    to
pardons or any form of executive clemency. The requirement
that a probation office make a recommendation to the Board
of Pardons and Paroles regarding pardons appears to be a
rule promulgated by the board rather than a statutory    duty
imposed by the legislature.    Section 27 of article    42.18
does not impinge on the constitutional function of the Board
of Pardons and Paroles to recommend or advise the governor
relative .to "reprieves and commutation of punishment     and
pardons."

                       SUMMARY

             Section 27 of article 42.18 does not
        violate.the separation of powers doctrine   of
        the Texas Constitution    by ~providinq that
        **[t]he Board of Pardons and Paroles shall
        request proposals and may award contracts   to
        district probation offices to provide parole
        services -- if the board determines"      that
        certain conditions  exist. No violation     of
        the separation of powers doctrine is shown by
        virtue of the board requiring a district
        probation office with whom it has a contract
        to perform certain duties prescribed by the
        board relative to the parole process. Section
        27 of article 42.18 does not impinge on the
        constitutional  authority  of. the Board of
        Pardons and Paroles to recommend or advise
        the governor relative to "reprieves and com-
        mutation of punishment and pardons."




                                    JIM     MATTOX
                                    Attorney General of Texas




                              P. 4806
Mr Henry B. Keene - Page 13   (JM-950)




NARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General    .




                              p. 4807
