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: 

"On the 9th Day of January, A.D., 1953, 

Governor Allan Shivers commuted the sentence 

of Robert Ernest Miers, Execution #366, 

from a death sentence to life imprisonment 

in the 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 feel we should obtain an official opinion of the Attorney 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 of Article 

781B, Code of Criminal Procedure." 

Article 781b is now 42.12 of Vernon's Code of Criminal 

Procedure, under which executive clemency is now granted. 

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

Since the year 1936, under the provisions of the Constitution of Texas, Article IV., Section 11, the power to grant 

commutation of sentence and pardons is vested in the Governor 

to be granted 'Ion the written signed recommendation and advice 

of the Board of Pardons and Paroles, . . .II 

The photostatic copy of the Governor's proclamation attached to your 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 to mean "the change of the 

punishment assessed to a less severe one. It differs from a 

pardon in that it may be imposed without the consent of the 

convict or against his will." 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 the Governor. Commutation 

of the death sentence to life imprisonment alone would have 

made Miers eligible for parole after serving twenty (20) calendar years. Art. 42.12, Sec. 15, V.C.C.P. The commutation 

that was granted by Governor Allan Shivers was that Miers' 

death sentence would be commuted to life imprisonment conditioned that he never become eligible 'for clemency 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 confused with the right of the Governor to grant under the authority 

given him by the Constitution, commutations, paroles, pardons, 

or any other form of clemency that he deems advisable; for there 

is a marked legal distinction between the power of the Board to 

recommend or advise the Governor and the Governor's power to follow said recommendation. Art. 42.12, Sec. 33, V.C.C.P., provides 

as follows: "The provisions of this Act shall not be construed 

to prevent or limit the exercise by the Governor of powers of 

executive clemency vested in him by the Constitution of this 

State." 

In EX Parte Lefors, supra, the Court had before it a question 

arising m'x construction of a proclamation wherein the Board 

of Pardons and Paroles had recommended to the GGovernor the 

commutation of a ten year sentence to time served. The Governor, 

however, by virtue of the authority vested in him under the 

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Honorable A. C. Turner, Page 3 (M-833) 

Constitution granted a conditional pardon conditioned upon 

several conditions set forth in the proclamation. Lefors 

was later arrested for having violated one of the conditions 

of his parole. On haheas corpus to the Court of Criminal 

Appeals, Lefors contended that he was entitled to discharge 

from custody because the Governor had not followed the recommendations of the Board of Pardons and Paroles. In upholding 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: 

"The majority are committed to the rule that 

the greater includes the lesser and the Governor 

may grant a lesser included form of clemency than 

recormnended by the Board of Pardons and Paroles 

but may not constitutionally grant a greater form." 

303 S.W.2d at page 400. 

In Rx Parte Redwine, 236 S.W. 96 (Tex.Crim. 1921), the Court -- 

of Criminal Appeals stated as follows: 

"We are of the opinion that, in the exercise of executive clemency to one convicted of 

a felony, the Governor may impose such conditions as he sees fit, and this may be done 

by direct expression or by reference and implication, and, as has often been said, it is 

only when the conditions are illegal, immoral, 

or impossible of performance that any question 

concerning them can be raised in the court." 

In 67 C.J.S. at page 585, we find the following: 

"Under statutes so providing, the power of 

prison authorities with respect to commutation 

of sentence is limited merely to recommending 

such action to the Governor; and the acceptance 

of such recommendation as to commutation and 

the amount thereof is a matter wholly within 

the discretion of the Governor." 

At 67 C.J.S., page 588, we also find: 

"In granting a conditional commutation, the 

authorized pardoning officer may impose such 

conditions, restrictions, and limitations as 

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Honorable A. C. Turner, Page 4 (M-833) 

he may think proper, provided they are not 

illegal, immoral, forbidden by law, or impossible of performance; and the condition 

may be either precedent or subsequent." 

In applying 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), it appears Bi& a person w o was convicted 

of murder, and sentenced to imprisonment for a term of ninetynine years, was pardoned by the Governor on the condition that 

Lzdb;lco;:ined in some state ;r private hospital for zh;egsy, 

he was not so con ined the pardon could b 

by the Governor. The pardon was later revoked by the Governor 

on the ground that the condition had not been complied with. 

The Court held that the Governor, in issuing the conditional 

pardon, reserved the right to revoke it on non-compliance with 

the conditions named, and was privileged to do so without judicial inquiry into the breach. This condition was not unreasonable. 

In Ex Parte Collie, 240 P.2d 275, cert.den. 73 S.Ct. 1145, 

345 U.S. 1000 97 L.F& 1406 (1952), the Supreme Court of the 

State of Caligornia had before it an ADDlication for Writ of 

Habeas Corpus wherein the Petitioner (Collie) attacked the 

validity of a condition imposed upon the commutation of his 

death sentence>olife-i?nprisonment that he shou never be 

~~~?.~~~eGfro;"';ol;d ,!!;; Supreme Court, speakin$lthrough Chief 

"a commutation is in the nature of a 

favor which may be withheld entirely or granted upon such reasonable conditions, restrictions and limitations as the Governor may 

think proper." He then went on to hold the condition was reasonable. 

In Green v. Gordon, 246 P.2d 38, cert.den. 73 S.Ct. 187, 

344 U.S. 886 97L.Ed.1406 (1952), the Supreme Court of California once igain had before it a mandamus action by a person 

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 in the nature of a favor 

which could withhold entirely or grant upon such reasonable 

conditions, restrictions and limitations as the Governor may 

think proper. 

While it has been held that such a conditional commutation 

of sentence as is involved in this case is valid, the terms 

of the conmutation by one governor cannot prohibit his successor 

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Honorable A. C. Turner, Page 5 (M-833) 

from changing or modifying its provisions. As was stated in 

Ex Parte Collie, supra, at page 276: 

"The terms of the commutation purport to 

prevent a subsequent governor from granting 

petitioner permission to apply for parole, 

but it is clear that one governor has no 

power to prohibit his successors from changing a commutation of sentence or modifying 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 to your question, the conditional commutation of 

sentence by Governor Allan Shivers cannot be given effect as a 

restriction on the power of a later governor to grant further 

executive clemency upon the written signed recommendation and 

advice of the Board of Pardons and Paroles. The doctrine of 

consistent interpretation of executive clemency requires that 

the present governor give great weight to the reasons that compelled a prior governor to act. 

SUMMARY 

The conditional commutation of sentence by 

one governor is not binding on a later governor's 

power to grant further executive clemency or 

parole upon the written 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 a prior 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 

First Assistant 

Prepared by Gilbert Pena 

Assistant Attorney General 

APPROVED: 

OPINION CO?IMITTEE 

Kerns Taylor, Chairman 

W. C. Allen, Co-Chairman 

Ben Harrison 

Sam Jones 

Jim Broadhurst 

John Reese 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

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