August1,1972

Hon. Clyde Whiteside Chairman Board of Pardons and Paroles Room 501 John H. Reagan Bldg. Austin, Texas 78701

Dear Sirs: Opinion No. M-1187 Re: Effect of Furman v. Georgia holding death penalty unconstitutional, and related questions. This is in response toyour recent inquiry concerning application of the recent U. S. Supreme Court decisions in Furman v. Jackson v. Georgia (69-5030)and Branch v. 40 W 4923, toprocedures before theexas Board rP&%nxAd Pa:&. We quote your entire letter (less formalparts): "The Texas Board of Pardons and Paroles respectfully requests your opinion concerning matters of commutation of sentence, asprovided inArticle 4,Section 11 of the Texas Constitution and other Texas laws. Inview of the recent United States Supreme court opinions concerning the death penalty inWilliam Henry Furman VS. State of Georgia, et. al., and being cases numbers 69-5003, 69-5030 and 69-5031. "It is the established policy of theTexas Board of Pardons and Paroles when considering commutation of sentences fromdeath to life imprisonment that the sentencing trial court officials instigate application for such commutation bywritten request to theBoard setting out its reason for seeking such commutation and requesting the Board tomake such recommendation to the Governor forhis action. This Board does not solicit commutation application norhas it to my knowledge ever initiated commutation without the request of the trial officials or the convicted defendant. This is the established procedure followedby this and prior Boards in such cases. Inview of the ruling of

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the Supreme Court in the Furman case, andother cases numbered above, we would like tohave a leqal opinion upon "1.

"2.

"3.

"4.

"5, the following questionsn Did the ruling in Furman vsO Georgia, 869-5003, 69-5030, and 69-3031 et. al., declare the death penalty unconstitutional, per se? What is the present posture of death penalties assessed inTexas District Courts inthe following catagories: (a) (b) (cl (d) (e) (f) Awaiting,motion fornew trial in Texas District Courts, Awaiting appeal toTexas Court ofCriminal Appeals. Affirmed by the Texas Court of Criminal Appeals and awaiting certiorari to the Supreme Court of the United States. Penalties provided declared unconstitutional by the Supreme Court of the United States. Habeas Corpus proceedings pending under Article 11,07Texas Code of Criminal Procedure, Habeas Corpus pending invarious federal courts, Inview of the Board's policy outlined above, may this Board now actwith regard to the above catagories of cases to recommend commutation to theGovernor? In the event of commutation of thedeath penalty to life imprisonment, does this Board have any responsibility for causing the individual tobe re-sentenced? What effect upon the action of thisBoard will result when a condemned person informs theBoard inwriting thathe does notwish to receive commutation fromdeath to life?"
The decision of the UC S, Supreme Court in the three cited cases (combined) :s a short per curiam decisionwhich, with formal parts omitted, holds:

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HonoClyde Whiteside, Page 3 (M-1187)

"Certiorari was granted limited question: 'Does the imposition to the following and carrying out

... of thedeath penalty in [thesecasesj constitute cruel and unusual punishment inviolation of the Eighth and Fourteenth Amendments?' 403 U.S. 952 (1971). The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusuarpunishment molation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings."E-asis added)D - Then there follow nine opinions (five separate concurrences and four joint and separate dissents).

anteWe must point out the fact that at the time of the issuof this opinion themandate of the United States Supreme - _ ..~. . . . Court has not been issued and petitions for rehearing have been filed in all three of the cases (aswell as all other Texas death penalty cases acted upon by that Court). We do not predict what the action of the Court upon thesemotions will be. We can only provide youwith our current understanding of these decisions, The following discussion must be accepted in this light, After careful study of the order and thenine opinions, we conclude that the death penalty, constitutionally impermissible, pe+ se, has notbeen declared T e entire thrust of the combined cases is todeclare Texas (andother) procedures are violative of "procedural due process" only as to the imposition of death as apunishment for crime in themanner and under the circumstances submitted. In our opinion, these decisions make all current Texas death sentences subject to successful attack inproper proceedings in appropriate courts and prohibits the assessment of death in current cases under present Texas statutes. II, You have advised this office that your inquiry with regard to "posture" includes not only presently but alsowith regard toposture in the event the death penalty shouldbe commuted to life imprisonment,
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InAttorney General's Opinion M-981 (1971), this office advised thatyour board "generally can recommend and the Governor, based on such recommendation, can commute adeath sentence to life imprisonment even though the conviction ison appeal and has not been finally determined by theTexas Courts. The Board and Governor may do the same even though the United States Supreme Court may reverse a judgment insofar as it imposes the death penalty and remands the case to the Texas Court for further proceedings in conformity with its judgment, so long as the Texas Court has taken no final action in the case," We further advised you that your board "can recommend to the Governor that adeath sentence be commuted to life imprisonment, and the Governorp pursuant to such recommendation, can commute the sentence without consent of the convict, Neither dowe find in our laws any requirement that the Board of Pardons and Paroles conduct ahearing before it recommends commutation nor before commutation is given," This conclusion is supported by the recent decision of the Court of Criminal Appeals in the case ofWhan v. Texas, S.W. 2d (notyet reported but being Cause No. 41 789 on tKdocket of nt court) delivered June 28, 1972. That oiinion holds that the Governor may commute adeath sentence to life even after the U, S, Supreme Court has declared thedeath penalty invalid or at any time after averdict of guilty hasbeen returned and the jury has fixed the penalty (butof course before anew trial has been granted by acourt of competent authority)(IThe opinion also noted that commutation does not affect the judgment but merely mitigates thepunishment, With such introductory statements, wewill now analyze the categories submitted, (a) Where adeath penalty conviction ispending motion for new trial in the District Court, thepenalty may be commuted and the motion for new trialwill be heard anddisposed of on the merits asserted as if life imprisonment had been theoriginal penalty imposed, (b) Where appellate review ispending in theCourt of Criminal Appeals, thepenalty may be commuted and the appeal may proceed.

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We express no opinion onwhether or not theCourt of Criminal Appeals might return the cause to the District Court for further proceedings (suchas sentencing, supplementary~briefs, etc.) or treat death penalty questions as surplusage, etc,, as that Court has not yet had an opportunity to act toprovide guidelines in suchmatters and the Code of Criminal Procedure appears not to contemplate such apossibility.(c) Where certiorari ispending, thepenalty may be commuted, thereby rendering death penalty questions moot (although other issues would remain unchanged).(d) Where the U. S, Supreme Court has granted death penalty relief and remanded the cause to the Court ofCriminal Appeals (butwhere the Court of Criminal Appeals has not yet acted to grant anew trial), thepenalty may be commuted and the Court of Criminal Appeals will re-affirm its judgment (this is the precise posture found inWhan v. State, supra). (4 Where habeas corpus proceedings are pending inTexas courts under Article 11,07, Texas Code of Criminal Procedure, commutationmay be granted, thereby rendering moot anydeath penalty questions.

Where Federal habeas corpus proceedings are pending, commutation may be granted and itwould thenbe incumbent upon counsel for the State to call this to the attention of the Federal Court for its consideration upon the issue of mootness. It is our opinion that in all of the above categories, absent commutation, the court concerned must either grant anew trial (orinhabeas corpus, order the release of theprisoner if anew trial isnot granted)0 III, Inview of the decision inWhan v. State, supra, it is our

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opinion that the Board of Pardons and Parolesmay now actwith regard to recommending commutations in all cases in all categorieso And since we find noprohibition toprevent the Board from acting sua fponte, we certainly find noprohibition against the Board requiring some initiative from either the State or the condemned person before consideration will be given to a recommendation. It is obviously within the inherent rule making power of theBoard to establish orderly procedures for the disposition ofmatters within its jurisdiction.

We findno statutory burden upon theBoard to concern itselfwith the sentencing or resentencing ofpersons commuted. Thiswould be amatter entirely for the judiciary. V. In regard to the effect of notice from the condemned man that he opposes commutation, we quote again (asinA. G. Opinion #M-981) from the Court of Criminal Appeals decision in Ex Parte LeFors, 303S,W,Zd 394 (Tex.Crim. 1957) atp* 397:

"Commutation of sentence means the change of thepunishment assessed to a less severe one. It differs from apardon in that itmay be imposed without consent of the convict or against hiswill." (Emphasis added,) Since thepeople of Texas have an interest in conserving judicial time and the immense cost of retrials, counsel for the State may properly petition for commutation to avoid suchwasteful duplicity. It is our opinion that such a request from a condemned man should be considered by theBoard along with all other factors but such request innoway prevents the Board from exercising its lawful discretion inmaking orwithholding a recommendation to the Governor, This question was 480 (U.S,S.Ct,s 1927)p aunanimous court: disposed inBiddle v0 Perovich, 274 U,S, wherein Mr. Justice Holmes stated for
-Both s,idesagree that the act of the President was properly styled a commutation of sentence, but the counsel of Perovich

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urge that when theattempt is to commute a punishment to one of adifferent sort it za:nzt be done without the convict's consent."
*Wewill not go intohistory, but we will say aword about theprinciples ofpardons in the law of the United States. Apardon in our days is not a private act of grace from an individual happening topossess power. It is apart of the Constitutional scheme. When granted it is the determination of theultimate authority that thepublic welfare will be better served by inflicting less thanwhat '.thejudgment fixed." l l l

"When we come to the commutation of death to imprisonment for life it ishard to see how consent has anymore todowith it than it has in the cases firstput. Supposing that Perovich did not accept the change, he could not have got himself hanged against the Executive order, Supposing that hedid accept, he could not affect the judgment tobe carried out, The considerations that led to the modification had nothing todowith hiswill. The only question iswhether the substituted punishment was authorized by law--. O On * l l "We cannot doubt that thepower extends to this case, By common understanding imprisonment for life isa lesspenalty than death. It is treated so in the statute under which Perovich was tried,"* l * SUMMARY 1, The U, SO Supreme Court has

### notheld thedeath penalty unconstitutional, E se,but has declared Texas procedure in the assessment of%eath unconstitutional. 2, Present death penalties at any stage between jury verdict and granting of anew trial may be commuted to life, 3, The Board of Pardons and Paroles may now act to

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recommend commutation upon application from officials of the convicting court. 4. The Board has no obligation to go forward in causing convicting courts to re-sentence (undernunc pro tune) those commuted, 5. The Board grant) commutation person. may recommend (and the Governor may over aprotest from the condemned Res&tfully submitted,

General of Texas Prepared by Howard M. Fender Assistant Attorney General APPROVEDr OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Max P. Flusche Lang A. Baker Robert L. Lattimore Gordon Cass SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WwI'E First Assistant

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