Honorable A. C. Turner, Chairman

Board of Pardons and Paroles John H. Reagan Building Austin, Texas 78701 Opinion No. M-833
Re: Does the condition attached to commutation "that subject never become eligible for
Dear Mr. Turner: clemency of any type at any future date" preclude parole?
you have recently requested an opinion of the following facts:
"Onthe 9thDay ofJanuary, A.D., 1953, Governor Allan Shivers commuted the sentence of Robert Ernest Miers, Execution #366, from adeath sentence to life imprisonment inthe Texas Department of Corrections 'conditioned that subject shall never become eligible for clemency of any type at any future date'. "This Board is considering parole for this subject, but we feelwe should obtain an official opinion of theAttorney General that will answer the following question:
"Does the condition attached to commutation 'that subject shall never become eligible for clemency of any type at any future date' preclude parole under the provisions ofArticle 781B, Code of Criminal Procedure." Article 781b isnow 42.12 ofVernon's Code of Criminal Procedure, under which executive clemency isnow granted.

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Honorable A. C. Turner, Page 2 (M-833)

Since theyear 1936, under the provisions of the Constitution of Texas, Article IV., Section 11, the power to grant commutation of sentence andpardons isvested in the Governor tobe granted 'Ionthewritten signed recommendation and advice of the Board of Pardons and Paroles,
. . .II The photostatic copy of theGovernor's proclamation attached toyour request for an opinion reflects that on January 9, 1953, the Board of Pardons and Paroles recommended that Robert Ernest Miers be granted the commutation of his death sentence to life imprisonment in the Texas penitentiary. Commutation has been defined tomean "the change 

### of the punishment assessed to a less severe one. Itdiffers from a pardon in that itmay be imposed without the consent of the convict or against hiswill." See Ex Parte Lefors, 303 S.W.2d 394 (Tex.Crim. 1957). The commutation recommended by the Board of Pardons and Paroles was a form of clemency greater than the conditional commutation of sentence granted by theGovernor. Commutation of the death sentence to life imprisonment alonewould have made Miers eligible forparole after serving twenty (20)calendar years. Art. 42.12, Sec. 15,V.C.C.P. The commutation thatwas granted by Governor Allan Shiverswas thatMiers' death sentence would be commuted to life imprisonment conditioned that he never become eligible 'forclemency of any type at any future date. The Constitution of Texas, Article IV., Section 11,relating to the recommendations and advice of the Board of Pardons and Paroles to the Governor should not be confusedwith the right of the Governor togrant under the authority given him by the Constitution, commutations, paroles, pardons, or any other form of clemency that he deems advisable; for there is amarked legal distinction between thepower of the Board to recommend or advise theGovernor and theGovernor's power to follow said recommendation. Art. 42.12, Sec. 33,V.C.C.P., provides as follows: "Theprovisions of this Act shall not be construed to

### preventor limit the exercise by the Governor ofpowers of executive clemency vested inhim by the Constitution of this State."
InEX Parte Lefors, supra, the Court had before itaquestion arising m'x construction 

### of aproclamation wherein the Board of Pardons and Paroles had recommended to the GGovernor the commutation of a tenyear sentence to time served. TheGovernor, however, by virtue of the authority vested inhim under the

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Constitution granted a conditional pardon conditioned upon several conditions set forth in the proclamation. Lefors was later arrested forhaving violated one of the conditions ofhis parole. Onhaheas corpus to the Court of Criminal Appeals, Lefors contended that hewas entitled todischarge from custody because the Governor had not followed the recommendations of the Board of Pardons and Paroles. Inupholding the Governor's power to grant a lesser clemency than recommended by the Board of Pardons and Paroles the Court stated on rehearing as follows:

"Themajority are committed to the rule that the greater includes the lesser and the Governor may grant a lesser included form of clemency than recormnendedby the Board of Pardons and Paroles but may not constitutionally grant a greater form." 303 S.W.2d atpage 400.
InRx Parte Redwine, 236 S.W. 96 (Tex.Crim. 1921), the Court -- ofCriminal Appeals stated as follows:

"Weare of the opinion that, in the exercise of executive clemency to one convicted of a felony, the Governor may impose such conditions ashe sees fit, and thismay be done by direct expression orby reference and implication, and, ashas often been said, it is only when the conditions are illegal, immoral, or impossible ofperformance that any question concerning them canbe raised in the court."
In 67C.J.S. atpage 585,we find the following:

"Under statutes soproviding, the power of prison authorities with respect to commutation of sentence is limited merely to recommending such action to theGovernor; and the acceptance of such recommendation as to commutation and the amount thereof isamatter wholly within thediscretion of the Governor."
At 67C.J.S., page 588,we also find:

"Ingranting a conditional commutation, the authorized pardoning officer may impose such conditions, restrictions, and limitations as

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hemay thinkproper, provided they arenot illegal, immoral, forbidden by law, or impossible ofperformance; and the condition may be either precedent or subsequent."
Inapplying the above rule, various conditions have been held proper. In the case of Ex Parte Daven ort --+--I 7 S.W.2d 589 (Tex.Crim. 1927), itappears Bi& aperson w owas convicted ofmurder, and sentenced to imprisonment for a term of ninetynine years, was pardoned by theGovernor on the condition that Lzdb;lco;:ined in some state ;rprivate hospital for zh;egsy,

hewas not so con ined the pardon could b by theGovernor. The pardon was later revoked by theGovernor on the ground that the condition had not been complied with. The Court held that theGovernor, in issuing the conditional pardon, reserved the right to revoke it on non-compliance with the conditions named, andwas privileged todo sowithout judicial inquiry into the breach. This condition was not unreasonable.
InEx Parte Collie, 240 P.2d 275, cert.den. 73 S.Ct. 1145, 345U.S. 1000 97L.F& 1406 (1952),the Supreme Court of the State 

### of Caligornia had before it anADDlication forWrit of Habeas Corpus wherein the Petitioner (Collie)attacked the validity of a condition imposed upon the commutation ofhis death sentence>olife-i?nprisonment that he shou never be ~~~?.~~~eGfro;"';ol;d ,!!;;Supreme Court, speakin$lthrough Chief "acommutation is in thenature of a favorwhich may bewithheld entirely or granted upon such reasonable conditions, restrictions and limitations as the Governor may think proper." He thenwent on tohold the condition was reasonable.
InGreen v.Gordon, 246 P.2d 38, cert.den. 73 S.Ct. 187, 344U.S. 886 97L.Ed.1406 (1952),the Supreme Court of California once igain had before it amandamus action by aperson convicted of first-degree murder whose sentence of death was commuted to life imprisonment without parole. The Court held that the commutation of sentence was inthe nature of a favor which couldwithhold entirely or grant upon such reasonable conditions, restrictions and limitations as the Governor may think proper. While ithas been held that such a conditional commutation of sentence as is involved inthis case isvalid, the terms of the conmutation by one governor cannot prohibit his successor

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from changing ormodifying itsprovisions. Aswas stated in Ex Parte Collie, supra, atpage 276:

"Theterms of the commutation purport to prevent a subsequent governor from granting petitioner permission to apply forparole, but it is clear that one governor has no power toprohibit his successors from changing a commutation of sentence ormodifying its provisions. It is the general rule that one legislative body cannot limit or restrict its own power or that of subsequent Legislatures and that the act of one Legislature does not bind its successors. . .A similar rule should apply to the head of the executive branch of state government. Accordingly, the present commutation cannot be given effect as a restriction on the power of later governors to grant further executive clemency."
In answer toyour question, the conditional commutation of sentence by Governor Allan Shivers cannot be given effect as a restriction on the power of a later governor togrant further executive clemency upon thewritten signed recommendation and advice of the Board of Pardons and Paroles. The doctrine of consistent interpretation of executive clemency requires that thepresent governor give great weight to the reasons that compelled aprior governor to act. SUMMARY The conditional commutation of sentence by one governor isnot binding on a later governor's power to grant further executive clemency or parole upon thewritten recommendation and advice of the Board of Pardons and Paroles under Article 42.12,Vernon's Code 

### of Criminal Procedure. However, the present governor, in considering the recommendation of the Board of Pardons and Paroles, may examine all circumstances relating to the prisoner's confinement and sentence commutation. The doctrine of consistent interpretation of executive clemency requires that the present governor give great weight to the reasons that compelled aprior governor to act.

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Honorable A. C. Turner, Page 6 (M-833)

Yours very truly,
CRAWFORD C. MARTIN Attorney General of Texas

FirstAssistant Prepared by Gilbert Pena Assistant Attorney General
APPROVED: OPINION CO?IMITTEE
Kerns Taylor, Chairman W. C.Allen, Co-Chairman
Ben Harrison SamJones Jim Broadhurst John Reese
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant

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