August 1, 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 to your 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, to procedures b efore 

theexas Board rP&%nxAd Pa:&. We quote your entire 

letter (less formal parts): 

"The Texas Board of Pardons and Paroles respectfully 

requests your opinion concerning matters of commutation 

of sentence, as provided in Article 4, Section 11 of 

the Texas Constitution and other Texas laws. In view 

of the recent United States Supreme court opinions 

concerning the death penalty in William 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 the Texas Board of 

Pardons and Paroles when considering commutation of 

sentences from death to life imprisonment that the 

sentencing trial court officials instigate application 

for such commutation by written request to the Board 

setting out its reason for seeking such commutation 

and requesting the Board to make such recommendation 

to the Governor for his action. This Board does not 

solicit commutation application nor has it to my knowledge ever initiated commutation without the request 

of the trial officials or the convicted defendant. 

This is the established procedure followed by this and 

prior Boards in such cases. In view of the ruling of 

-5789.. 
Hon. Clyde Whiteside, Page 2 (M-1187) 

the Supreme Court in the Furman case, and other cases 

numbered above, we would like to have 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 in Texas District Courts in the following 

catagories: 

(a) 

(b) 

(cl 

(d) 

(e) 

(f) 

Awaiting,motion for new trial in Texas 

District Courts, 

Awaiting appeal to Texas Court of Criminal 

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 11,07 Texas Code of Criminal Procedure, 

Habeas Corpus pending in various federal 

courts, 

In view of the Board's policy outlined above, may this 

Board now act with regard to the above catagories of 

cases to recommend commutation to the Governor? 

In the event of commutation of the death penalty to life 

imprisonment, does this Board have any responsibility 

for causing the individual to be re-sentenced? 

What effect upon the action of this Board will result 

when a condemned person informs the Board in writing 

that he does not wish to receive commutation from death 

to life?" 

The decision of the UC S, Supreme Court in the three cited 

cases (combined) :s a short per curiam decision which, with 

formal parts omitted, holds: 

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,,’ . I 

Hon o Clyde Whiteside, Page 3 (M-1187) 

"Certiorari was granted limited 

question: 'Does the imposition 

to the following 

and carrying out 

. . . of the death penalty in [these casesj constitute 

cruel and unusual punishment in violation 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). 

ante 

We must point out the fact that at the time of the issuof this opinion the mandate of the United States Supreme - _ ..~. . . . Court has not been issued and petitions for rehearing have been 

filed in all three of the cases (as well as all other Texas 

death penalty cases acted upon by that Court). We do not predict what the action of the Court upon these motions will be. 

We can only provide you with our current understanding of these 

decisions, The following discussion must be accepted in this 

light, 

After careful study of the order and the nine opinions, we 

conclude that the death penalty, 

constitutionally impermissible, 

pe+ se, has not been declared 

T e entire thrust of the combined cases is to declare Texas (and other) procedures are 

violative of "procedural due process" only as to the imposition 

of death as a punishment for crime in the manner and under the 

circumstances submitted. 

In our opinion, these decisions make all current Texas death 

sentences subject to successful attack in proper 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 also with regard 

to posture in the event the death penalty should be commuted 

to life imprisonment, 

-5791- 
Hon. Clyde Whiteside, Page 4 (M-1187) 

In Attorney General's Opinion M-981 (1971), this office advised that your board "generally can recommend and the Governor, 

based on such recommendation, can commute a death sentence to life 

imprisonment even though the conviction is on appeal and has not 

been finally determined by the Texas 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 a death sentence be commuted to life imprisonment, 

and the Governorp pursuant to such recommendation, can commute the 

sentence without consent of the convict, Neither do we find in 

our laws any requirement that the Board of Pardons and Paroles 

conduct a hearing 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 of Whan v. Texas, S.W. 

2d (not yet reported but being Cause No. 41 789 on tKdocket 

of nt court) delivered June 28, 1972. That oiinion holds that 

the Governor may commute a death sentence to life even after the 

U, S, Supreme Court has declared the death penalty invalid or at 

any time after a verdict of guilty has been returned and the jury 

has fixed the penalty (but of course before a new trial has been 

granted by a court of competent authority) (I The opinion also 

noted that commutation does not affect the judgment but merely 

mitigates the punishment, 

With such introductory statements, we will now analyze the 

categories submitted, 

(a) 

Where a death penalty conviction is pending motion for new 

trial in the District Court, the penalty may be commuted and the 

motion for new trial will be heard and disposed of on the merits 

asserted as if life imprisonment had been the original penalty 

imposed, 

(b) 

Where appellate review is pending in the Court of Criminal 

Appeals, the penalty may be commuted and the appeal may proceed. 

.-_ 

‘l; -5792~ 
. I 

Hon. Clyde Whiteside, Page 5 (M-1187) 

We express no opinion on whether or not the Court of Criminal 

Appeals might return the cause to the District Court for further 

proceedings (such as sentencing, supplementary~briefs, etc.) or 

treat death penalty questions as surplusage, etc,, as that Court 

has not yet had an opportunity to act to provide guidelines in 

such matters and the Code of Criminal Procedure appears not to 

contemplate such a possibility. 

(c) 

Where certiorari is pending, the penalty 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 of Criminal Appeals 

(but where the Court of Criminal Appeals has not yet acted to 

grant a new trial), the penalty may be commuted and the Court 

of Criminal Appeals will re-affirm its judgment (this is the 

precise posture found in Whan v. State, supra). 

(4 

Where habeas corpus proceedings are pending in Texas courts 

under Article 11,07, Texas Code of Criminal Procedure, commutation may be granted, thereby rendering moot any death penalty 

questions. 

Where Federal habeas corpus proceedings are pending, commutation may be granted and it would then be 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 a new 

trial (or in habeas corpus, order the release of the prisoner 

if a new trial is not granted) 0 

III, 

In view of the decision in Whan v. State, supra, it is our 

-5793- 
‘ . 

Hon. Clyde Whiteside, Page 6 (M-1187) 

opinion that the Board of Pardons and Paroles may now act with 

regard to recommending commutations in all cases in all categories o And since we find no prohibition to prevent the Board 

from acting sua fponte, we certainly find no prohibition 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 the Board to establish orderly procedures for the disposition 

of matters within its jurisdiction. 

We find no statutory burden upon the Board to concern 

itself with the sentencing or resentencing of persons commuted. This would be a matter entirely for the judiciary. 

V. 

In regard to the effect of notice from the condemned man 

that he opposes commutation, we quote again (as in A. G. Opinion 

#M-981) from the Court of Criminal Appeals decision in Ex Parte 

LeFors, 303 S,W,Zd 394 (Tex.Crim. 1957) at p* 397: 

"Commutation of sentence means the change of 

the punishment assessed to a less severe one. It 

differs from a pardon in that it may be imposed 

without consent of the convict or against his will." 

(Emphasis added,) 

Since the people 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 such wasteful 

duplicity. It is our opinion that such a request from a condemned man should be considered by the Board along with all other 

factors but such request in no way prevents the Board from exercising its lawful discretion in making or withholding a recommendation to the Governor, 

This question was 

480 (U.S,S.Ct,s 1927) p 

a unanimous court: 

disposed in Biddle v0 Perovich, 274 U,S, 

wherein Mr. Justice Holmes stated for 

-Both s ,ides agree that the act of the 

President was properly styled a commutation 

of sentence, but the counsel of Perovich 

-5794- 
Hon. Clyde Whiteside, Page 7 (M-1187) 

urge that when the attempt is to commute a 

punishment to one of a different sort it 

za:nzt be done without the convict's consent." 

*We will not go into history, but we will 

say a word about the principles of pardons in 

the law of the United States. A pardon in our 

days is not a private act of grace from an 

individual happening to possess power. It is 

a part of the Constitutional scheme. When 

granted it is the determination of the ultimate authority that the public welfare will 

be better served by inflicting less than what 

' .the judgment fixed." l l l 

"When we come to the commutation of death 

to imprisonment for life it is hard to see 

how consent has any more to do with it than it 

has in the cases first put. Supposing that 

Perovich did not accept the change, he could 

not have got himself hanged against the Executive order, Supposing that he did accept, he 

could not affect the judgment to be carried 

out, The considerations that led to the 

modification had nothing to do with his will. 

The only question is whether the substituted 

punishment was authorized by law--. O On * l l 

"We cannot doubt that the power extends 

to this case, By common understanding imprisonment for life is a less penalty than death. 

It is treated so in the statute under which 

Perovich was tried,"* l * 

SUMMARY 

1, The U, SO Supreme Court has not held the death 

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 a new trial may be commuted 

to life, 

3, The Board of Pardons and Paroles may now act to 

-5795- 
Hon. Clyde Whiteside, Page 8 (M-1187) 

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 (under nunc 

pro tune) those commuted, 

5. The Board 

grant) commutation 

person. 

may recommend (and the Governor may 

over a protest 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 

-5796-