                              ATTORNEYGENERALOFTEXAS
                                          GREG        ABBOTT



                                              August 252004



The Honorable Rodney Ellis                                Opinion No. GA-0240
Chair, Committee on Government         Organization
Texas State Senate                                        Re: Authority of the Board of Pardons and
Post Office Box 12068                                     Paroles to consider applications for pardons
Austin, Texas 7871 l-2068                                 based on innocence  (RQ-0192-GA)

Dear Senator Ellis:

        You ask about the requirements necessary for the Board ofPardons and Paroles (the “Board”)
to consider an application for a pardon based on innocence.’ In particular you inquire about the
effect of certain Board rules on the Board’s power to consider such applications. See Request Letter,
sup-a note 1, at 1.

       Texas Constitution article IV, section 11 requires the legislature to establish             a Board of
Pardons and Paroles. See TEX. CONST. art. IV, 4 1 l(a). It also provides that

                 [i]n 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

Id. art. IV, 9 11 (b).

         The legislature has adopted Code of Criminal Procedure chapter 48 and Government Code
chapter 508 to implement article IV, section 11. See TEX. CODE GRIM. PROC. ANN. arts. 48.01-.05
(Vernon 1979 & Supp. 2004) (chapter 48); see also TEX. GOV’T CODE ANN. $5 508.001..324
(Vernon 1998 & Supp. 2004) (chapter 508), as amended by Act of Oct. 12,2003,78thLeg.,        3d C.S.,
ch. 3, 95 11.02-.22, 2003 Tex. Gen. Laws 78, 92-98 (effective Jan. 11, 2004). Neither of these
statutes refers to a pardon for innocence, although other legislation refers to such pardons. Civil
Practices and Remedies Code chapter 103 provides for compensating            a person for wrongful
imprisonment if the person “has received a full pardon on the basis of innocence” or “has been


        ‘Letter from Honorable Rodney Ellis, Chair, Committee on Government Organization, Texas State Senate, to
Honorable Greg Abbott, Texas Attorney General (Mar. 9,2004) (on file with Opinion Committee, also available at
hnp:iiwww.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Rodney Ellis - Page 2            (GA-0240)




granted relief on the basis of actual innocence.” TEX. Crv. PRAC. &REM. CODE ANN. 5 103.001(a)
(VemonSupp. 2004). S~~~ISOTEX.OCC.CODEANN. 5 1701.312(a)-(b)(3)(Vemon2004)(aperson
convicted of a felony is disqualified to be a peace officer unless a pardon is granted for subsequent
proof of innocence).

       You ask the following specific questions:

          1. What are the requirements for the Board of Pardons and Paroles to consider
          an application for a pardon based on innocence?

          2. Does the Board of Pardons and Paroles have the authority           [to] exercise
          discretion in reviewing pardons of innocence?

          3. Under what circumstances     may the Board of Pardons and Paroles exercise
          that discretion?

Request Letter, supra note 1, at 2.



         The Board has provided by rule the following requirements      for considering     an application
for its recommendation of a pardon based on innocence:

                       On the grounds of innocence of the offense for which
               convicted   the board will only consider          applications  for
               recommendation  to the governor for full pardon upon receipt of

               (1) a written unanimous recommendation       ofthe current trial officials
               of the court of conviction; and

               (2) affidavits of witnesses    upon which     the recommendation        of
               innocence is based; and

               (3) if the basis for the recommendation     is evidence not previously
               available, a certified order or judgment of a court having jurisdiction
               accompanied by a certified copy of the findings of fact.

37 TEX. ADMIN. CODE 3 143.2 (2004) (emphasis added). “Trial officials” are “[tlhe present sheriff,
prosecuting attorney, and judge in the county and court of offense, conviction and release.” See id.
§ 141.111(48).

       This rule states that the board “will only consider” applications for a recommendation of a
pardon based on innocence if they include certain documents. See id. $ 143.2. You state that the
Board’s failure to consider an application for a recommendation     for a pardon based on innocence
would deny the applicant’s right ofremonstrance guaranteed by Texas Constitution article I, section
     The Honorable Rodney Ellis - Page 3             (GA-0240)



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     27. See Request Letter, supra note 1, at 2. You also state that “[tlhe right of remonstrance
     guarantees meaningful review of petitions for executive clemency by requiring that the Board at a
     minimum ‘consider’ the petition.” Id, (citing Graham v. Tex. Bd. ofPardons & Paroles, 913 S.W.2d
     745,752 n.10 (Tex. App.-Austin 1996, writ dism’d w.0.j.). Article I, section 27 states as follows:

                             The citizens shall have the right, in a peaceable manner, to
                     assemble together for their common good; and apply to those invested
                     with the powers of government for redress of grievances or other
                     purposes, by petition, address or remonstrance.

     TEX. CONST. art. I, (i 27.

             In Graham, the Austin Court of Appeals addressed the right of remonstrance        as follows:

                              Graham’sright ofremonstranceguaranteesmeaningfulreview
                     of his petition by the Board by requiring that the Board “consider” it.
                     Professional    Ass’n of College Educators v. El Paso County
                     Community Dist., 678 S.W.2d 94,96 (Tex. App.-El Paso 1984, writ
                     ref d n.r.e.). A government body considers a remonstrance ifit stops,
                     looks, and listens to a grievance. Id.

                              However, the right to have the Board consider his petition
                     does not entitle Graham to any specific due process: “[there is] no
                     requirement that those trusted with the powers of government must
                     negotiate or even respond to complaints tiled by those being
                     governed.” Id.; accord Corpus Christi Zndep. Sch. Dist. v. Pad&z,
                     709 S.W.2d 700,704-05 (Tex. AppCorpus         Christi 1986, no writ).
                     We hold that the right ofremonstrance   does not entitle Graham to a
                     hearing before the Board on his petition for clemency.

     Graham, 913 S.W.2d at 752 n.10.

             Nothing in Graham forbids the Board from exercising its rulemaking power to establish
     requirements for an application for a recommendation of a pardon based on innocence. In answer
     to your first question, Title 37, section 143.2 of the Texas Administrative Code states the Board’s
     requirements for considering an application for a pardon based on innocence. See 37 TEX. ADMM.
     CODE 3 143.2 (2004).

             The Board’s rule on the documents required in an application for its recommendation  of a
     pardon based on innocence must, however, be read together with the following rule on the use and
     effect of Board rules:

                              These rules are prescribed for the performance         of the
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                     constitutional and statutory powers and functions vested in the board.
     The Honorable Rodney Ellis - Page 4                 (GA-0240)




                      In no event shall they or any of them be construed as a limitation or
                      restriction upon the exercise of any discretion by the board or by a
                      parole panel.

     Id. 5 141.51.

             Administrative rules are ordinarily construed in the same way as statutes. See Lewis v.
     Jacksonville Bldg. &Loan Ass’n., 540 S.W.2d 307,310 (Tex. 1976); CityofLubbockv.          Pub. Util.
     Comm’n ofrex., 705 S.W.2d329,330-31       (Tex. App.-Austin 1986,writref dn.r.e.);Tex.Att’yGen.
     Op. No. JC-0418 (2001) at 5. A statute must be harmonized with other relevant statutes, ifpossible.
     See R.R. Comm’n of Tex. v. Moran Util. Co., 728 S.W.2d 764, 767 (Tex. 1987); State v. Standard
     Oil Co., 107 S.W.2d 550, 559 (Tex. 1937).

               We read section 141.51 as authorizing the Board to make reasonable exceptions to the
     requirements stated in section 143.2. See 37 TEX.ADMM. CODE §§ 141.51,143.2 (2004). The Board
     has stated that “[iInnocence pardons are extremely unusual and are usually considered only on
     unanimousrecommendationofan         applicant’s three trial officials (sentencingjudge, district attorney,
     sheriff),“* thus indicating that the Board on occasion waives requirements stated in its rule. “In
     construing a statute, .       a court may consider among other matters the                administrative
     construction of the statute . .” TEX. GOV’T CODE ANN. § 3 11.023(6) (Vernon 1998); Ins. Co. of
     Pa. v. Stelhik, 995 S.W.2d 939, 943 (Tex. App.-Fort Worth 1999, pet. denied) (interpretation of
     Texas Workers Compensation statute in memo to field officer by executive director who is charged
     with enforcing statute was entitled to “serious consideration” in construing statute); Tex. Att’y Gen.
     Op. No. GA-0135 (2004) at 4. Courts will moreover defer to an agency’s interpretation of its own
     rule. See Pub. Util. Comm’n of Ten. v. GulfStates Utils. Co., 809 S.W.2d 201,207 (Tex. 1991). In
     answer to your second question, we conclude that the Board may, in the exercise of reasonable
     discretion, waive requirements stated in Title 37, section 143.2, Texas Administrative Code, for
     considering an application for a pardon based on innocence. See 37 TEX. ADMIN. CODE 9 143.2
     (2004).

             You also inquire about the circumstances under which the Board may exercise its discretion
     to waive requirements stated in section 143.2. See Request Letter, supra note 1, at 2. This is a
     matter within the Board’s reasonable discretion. We note, however, that section 143.2 requires the
     applicant to provide documents showing innocence. See 37 TEX. ADMIN. CODE §143.2(2) (2004).
     The Board could reasonably waive its section 143.2 requirement for a particular document or
     documents where the applicant presents other highly persuasive evidence of innocence. See TEX.
     CODECRIM. PROC. ANN. arts. 64.01-.05 (Vernon Supp. 2004) (chapter 64 concerning forensic DNA
     testing of convicted person). We reiterate that it is for the Board to determine when it should waive
     the requirements stated in section 143.2.




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              2Texas Board of Pardons and Paroles, Executive Clemency in Texas, What is a Full Pardon? available at
     http://www.tdcj.state.tx.usmpplexec~cle~exec~cle~h~ (emphasis added),
      The Honorable Rodney Ellis - Page 5            (GA-0240)



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                                             SUMMARY

                              The Board of Pardons and Paroles has by rule established
                     requirements for considering applications for its recommendation    to
                     the governor for a pardon based on innocence. Pursuant to another
                     rule, the Board has discretion to waive such requirements.     It is a
                     matter within the Board’s reasonable discretion to determine when it
                     should waive a requirement or requirements.




      BARRY R. MCBEE
      First Assistant Attorney General

      DON R. WILLETT
 .-   Deputy Attorney General for Legal Counsel

      NANCY S. FULLER
      Chair, Opinion Committee

      Susan L. Garrison
      Assistant Attorney General, Opinion Committee
