R-773 

:’ ,, ! 1 .“- 

OFFICE OF 

5 aji: 

THE A~T.~~NEYY GENERAL 

PRICE DANIEL 

AmtnwKY GENERAL October 28, 1947 

FAGAN DICKSON 

RPST UclIlllANT 

State Board of Pardons & Paroles 

Austin, Texas 

ATTW: Hon. Walter C. Strong, Member 

Oplnlon No. v2415 

Re: Cons~ltutlonallty and 

construction of Ii. B. 

~120, 50th Legislature 

Dear Sir: 

You have requested our opinion relative to 

various matters arising by virtue of the "Adult Pro+ 

batlon and Parole Len" passed by the 50th Legislature 

(H. B. 120). We will restate your questions end answer each question immediately following each restatement. We will then proceed with a general dls-., 

cusslon as to our'constructlon of the Act and the l&w 

upon which we based our ::qswers; 

Question No. 1"'. Ia Section 12 of H. B. 120, 

50th Legislature, constl~~~tlonally valid tid does It 

supersede the constitutional amendment that designates 

paroles as reprieves? 

.We know of no constitutional amendment that 

designates paroles as reprieves. In fact, a parole is 

not a reprieve or any form of executive clemency. Section 12 of said Act Is therafore not unconstitutional 

as being in conflict with Section 11 of Article Ip of 

the Constitution of Texas. . 

Question No. 2: Reprieves having been considered by the' pr&vious penitentiary officials as paroles, Is the,Board of Pardons and Paroles under H. B. 

120 to consider such~terms, I*eprleves and paroles, as 

synonymous? 

The Board of Pardons and 'Paroles should not 

consider reprieves and garole, as being synonymous. 
$1: 82 State Board of Pardons and Paroles, Page 2 (V-415) 

Question No. 3: Sections 1 to 7 inclusive 

have reference to probation. Section 1 states "the 

courts of the State of Texas having original jurlsdiction of criminal actions, etc." Does this include 

corporation courts, justice courts, and county courts 

in criminal cases for misdemeanors; and do such courts 

have the right to probate persons convicted therein? 

Corporation courts, justice courts, and county courts do not have'the authority under this Act to 

place persons convicted in such.courts under probation. 

Question No. 4: Se&i&'7 states that the 

Board of Pardons.and Parole& created by the Constitution of this State shall administer the provisions of 

this Act and &hall act as the State Board of Probation as authorized by Section lla, Article IV, of the 

Constitution. Section 8 provides for a method for selection of the Board members by creating a committee, 

examlnirig applicants. Wewould like to know whether 

or not these two sections are ln conflict with the con- 

'stltutlonal amendment, Section 11, Article IV, creating 

the Board of Pi&ions and Parole! and~are they constltutlonal? 

We do not find where.% a State Board of Probation is mentioned ln Section lla of Article IV of 

the Constitution. Section 7.i~ not In conflict with 

the constitutional amendmenji, S&c. 11, Art. IV. Although the Act in said Section 7 provides that the 

constitutional Board of Pardons and Paroles shall act 

as a State Board of Probation, we do not find anywhere 

In said Act ,whereln such Board is given any duties to 

perform in reference to probation. Section 8 of said 

Act Is unconstitutional In that it Is In conflict with 

Sec. 11 of Art. IV; for the State Constitution provides 

only one qualification for members of the.Board of Pardons and Paroles--that they "shall have been resident 

citizens of the State of Texas for a period of not less 

than two years immediately preceding their appointment." 

Question No. 5: Does not the reference to 

probation require the trial judge who tries criminal 

cases and puts a defendant on probation to retain jur- 

~lsdlctlon of the,case and administer same; and that 

the Board of Pardons,and'Paroles should not take jurisdiction of such case until the party has violated his 

probation and been committed and received at the penitentiary of this State? 
State Board of Pardons and Paroles, Page 3 (V-415) ic ‘83 

The Probation Act does contemplate that a 

prisoner on probatlop la wlthia the cimtlnulng’jurlsdiction of the court of conviction, risslsted, of course, 

Srcm time to time as’may be n6cessary ln the enforcement of his jurlsdlctlon, by the proper probation officer or officers. Of course,, when the probationer has 

lost his status as a probationer, and the gates have 

been closed upon him by the officials of the penltenMary or other place of correctional confinement, the 

Court’s jurisdiction ceases. The Judge has performed 

his judicial functions under the law. 

Qtiestlon No. 6: It will be observed that 

this Act does not provide for the appropriation of 

any funds so that it could be administered and, for 

that reason, la the Board required to try to administer same? 

It 1s the duty of the Board of Pardons and 

.Paroles to admlnlster,thls l+W Insofar as they possibly 

can with whatever funds are available to them.. 

Quest& Ho. 7: Seutlon 12 states “the 

BMrd is h6reby &tithorized.to r&lease on parole with 

the approval of the Governor any person confined In 

any Renal or correctional institution in this State, 

etcr Is’thls not ln conflict with the Constltutlon 

undiir, which the Governor has the authority to-release 

pg$ze;;om the penltentl~~, and there~~~e’unco~tlAs stated in our answer to your ‘Questior~HO. 

;;‘$z:on 12 1~ not ln conflict with the Constitution 

It provides that the Governor shall have 

the powe; after ~convlctlon, on the recommendation OS 

the Board of Pardons. and Parole?, .to grant reprieves 

+,d comutatlons of punls?ment. and pardons. 

Question No. 8: Section 20 sets out, am~ti 

othir thinga, that a paroled prisoner who la amused 

of vlolatlng his parole,,~ls entitled to’s hearing and 

states when the Board has determined this matter, they 

may revoke his parole. Is this not ln conflict with 

the constitutional amendment areatlng the Board OS 

Pardons ‘and ‘Paroles, and placltig this duty upon the 

Governor of then State? 

Sections 20, wherein’lt attempts to authorize 

the Board of Pardons and Paroles to revoke a.parOle 
;. -.- 

i..-- 84 State.Board,oS Pardons and Paroles, Page 4 (v-415) 

.- ,.I 

theretofore granted, Is unconstltutlqnal ln that It J.s 

in conflict with that portion of aectloti 11 of Article 

IV of our Constitution, which provides that "The Governor shall have the power to revoke paroles." 

Question No. 9: Sectlon 19 authorizes the 

Board to issue warrants for the return of a parolee 

to the penitentiary, upon finding a violation of his 

parole, and that any probation or parole officer or 

any other peace officer may. arrest a parolee without 

a warrant when the parolee has, ln the judgment of 

the parole offJeer or peace officer, violated the conditions of his' parole. Can this Section of the bill 

legally give such officer the right to make arrests 

as stated therein? 

Inasmuch as the Governor is the only person 

who can revoke a parole, such parolee Is entitled to 

his liberty under such parole until it has been re-' 

voked by the Governor; and It is our opinion that, until such revocation, neither probation nor parole officers nor any other peace officer may arrest a parolee. 

and deprive him of his liberty by virtue of such conviction, either upon a warrant issued by the Board of 

Pardons and Paroles or without suah warrant. 

Question No; 10: Section 9 requires members 

of the Board to give full time to the duties of their 

office and to be paid a salary of $6,000 annually. Ho 

appropriation has been made for thla. Does this entitle each member of the Board to a deficiency warrant 

for the difference between the $6,000 and'the salary 

he is being paid at this time, as shown in the Appropriation Bill? 

House Bill lo. 807, of the 50th Leglslature 

makes the salaries of those officers whose salaries 

are statutorily and not constitutionally fixed at the 

sums appropriated therefor for the current biennium. 

The current member salaries are only $4,764.00. There 

csn be no deficiency IS the appropriated salaries are 

paid. 

Question No. 11: Should the Board in making 

its recommendations fbr clemency to the Governor place 

ln such recommendations the conditions required OS the 

parolee, or shoiild the Governor place such conditions 

ln his proclamations, when the recommendations do not 

contain them? 
State Board of Pardons and ParolesI Page 

7 -- 

5 (v-4$5)“: -- 

As stated above, the releasing ,oS a convicted 

person on parole fs'not :811 act or executive~clemency. 

This Act provides that a person who has served the requisite time In the penitentiary may be released on parole by the Board of Pardons and Paroles upon the approval by the Governor. The Board, therefore, does 

not make recommendations for the release on parole-- 

but should grant the parole by its own proclamation, 

snd should incorporate therein the conditions required 

of the parolee, which should be submitted to the Governor for his approval or disapproval. OS course, such 

parole would not become effective until approved by 

the Goverpor as provided for In the Act, and accepted 

by the parolee. 

85 

Question No. 12: Could the Board make recommendations for clemency Under the cons@tutlonal 

amendment creating the Board, which does not refer to 

parole, and without considering the requirements referred 

to In the bill with reference to parole? 

Inasmuch as the granting of a parole' is not 

the -tit&g of executiye clemency, the Board ii making'z%Mmmeiidatlons to the,Governor Sor.executlve 

clemency--which ln~ludes~reprleves; commutations of 

punl@ment, and pardons--Is not required to consider .. 

any of the prwislons contained in this Act, and may 

make In its recommendations any condition or conditiona 

not Illegal, immoral or Incapable of performance. 

Question No. 13: What is the difference, If 

any, with reference to recoannendlng areprieve; .a conditional pardon, or a parole? They all have the effeat 

of releasing a prisoner f?%mthe penitentiary. 

As stated above, the.Board does not recommeid 

a parole. 

GEN!&U DIS&SSION 

We note that In your first letter of request 

you state "the Board will appreciate an interpretation 

of the.Act as a whole;" .so In addition to the answers 

above made to your specific questiOns,~and the dlecusslon 

of the reasons for such answers to follow, we wUl attempt to Interpret the Act as a whole as well as the 

various sections thereof. 
Ed - 

! --’ .; ,,;3& 

State Board of Pardons and Paroles, Page 6.(V-415) 

Section 11 of Article IV of the Texas Constitution before its amendment in 1936 read as Sollows: 

"In.all criminal cases, exce t treason 

and impeachment, he (the Governor P shall have 

power after conviction, to grant reprieves, 

commutations of punishment and pardons; and under such rules as, the Legislature may prescribe, 

he shall have power to remit Sines and Sorfeltures. With the advice and consent of the Senate, 

he may grant pardons~ In cases of treason; and to 

this end he may respite a sentence therefor, until the close of the succeeding session of the 

Legislature; provided, that in all cases of remlsslons of fines and forfeitures, or grants of 

reprieve, commutation of punishment or pardon, 

he shall file In the office of the Secretary of 

State his reasons therefor." (Parenthetical 

matter ours) 

Such Section as amended in 1936 reads as Sollows: 

"There is hereby created a Board of Pardolls and Paroles, to be composed of three 

members~, who shall have been-resident citisens.of the State of Texas for,a period of 

not less than-two years Immediately preceding such appointment, each of whom shall hold 

office for a termof six years; ~provided that 

of the members of the first board appolnted, 

one shall serve for two years, one rorfbur 

years and one for six years from the first 

day of February, 1937, and they shall cast 

lots for their respective .terms. Gne member of said Board shall be appointed by the 

Governor, one member by the Chief Justice of 

the Supreme Court of the State of Texas, and 

one member by the presiding Justice of the 

Court of Criminal Appeals; the appointments 

of all members of said Board shall be'made 

with the advice and oonsent of two-thirds of 

the Senate present. Each vacancy.shall be 

filled by the respective appointing power 

that theretofore made the appointment to such 

position and the appolntlve powers shall have 

the authority to make recess appointments until the convening of the Senate. ._ 

"In all criminal cases, except treason 

and impeachment, the Governor shall have power* 
State Board of Pardons and Paroles, Page 7 (v415)i:Z a7 

after conviction, on the written signed recommendation and advice of the Board of Pai?- 

d0n0 ana Paroles, or a majority thereof, to 

grant reprieves and ccmmutatlons of punlshment ana pardons; ana under such rules as 

the Legislature may prescribe, and upon the 

written recommendation and advice of a m& 

jorlty of the Board of Pardons and Paroles, 

he shall have the power to remit Sines and 

forfeitures. The Governor shall have the 

power to grant one reprieve in any capital 

case for a period not to exaeed thirty (30) 

days; and he shall have the power to revoke 

paroles and conditional pardons. With the 

advice and consent of the Legislature, he 

may grant reprieves, commutations of punlshment and pardons in cases oS.treason. 

“The Legislature shall have power to 

regulate procedure before the Board of Pardons and’Parole8,. and shall require it to keep 

record of Its actions and the reasons therezro& p shall have authority to enact parole 

. 

The Texas Constitution was amended ln 1935 by 

addlng Section 1lA to Article IV, which reads as follows: 

“~The Courts of the State of Texas kaving original jurlsdlctlon of crtiinal actions shall have the power, after convlctlon, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe. ” ,, 

We do not find any other provlalons of our State Co~stltutlon that we deem applicable to’House Bill Ho. 120. 

The first six sections of said Act give the 

power to the courts of record of the State of $e%as~‘havlng original j~sMtion of cm-1 actions, in &rtaln instances, to suspend the lmposltlon or~the execution of tientence and placetheconvlcted defendant On 

probation for the maXimum period of~the sentence lm- 

,posed. Such sections further provide for an lnvestlgatlon by a probation and parole officer of then circastances of the offense, criminal record, social history 

/ 
c-- 2, - - 88 .’ 

St&e Board of Pardons and Paroles, Page 8 (V-415) 

and present condition of ~the defendant, as well as 

other matters. It provides that such courts shall determine the terms and conditions of the probation and 

lists various conditions that may be included In such 

probation, and provides that upon the expiration of 

the period of probation such courts by order shall discharge the defendant. It also provides that having 

discharged the defendant, such courts may set aside 

the verdlctor permit the defendant to withdraw his plea 

of guilty and dismiss the accusation; complaint, information or Indictment against him ln a manner very 

similar to that provided for ln the case of a suspended sentence. It also provlde~s that such courts may 

Issue a warrant for the defendant for violation of any 

of the conditions of the probation and provides that 

such courts shall grant a hearing on the question of 

such violation, without a jury, and may continue or 

revoke the probation, with the right of the probatloner to appeal the revocation. 

As stated ln snswer to your third question, 

It is ‘our opinion that corporation courts, justice 

courts, and county courts do not have,the authority 

to place persons convicted ln such courts under probatlon, for the reason that such.courts have jurlsdlotlon to try only persons charged with misdemeanors. 

You~wlll note that-both the Constitution (Sec. 1lA OS 

Article IV) and this Act give the courts. the power, 

after conviction, to suspend the lmposltlon or execution of sentence and to place the defendant upon probation and to reimpose such sentence. . -.” (Underscoring ours). A sentence is imposed only In felony 

cases. See Chapter 3 of. our Code of Criminal Procedure . Such Chapter provides for a “judgment” and a 

“sentence” ,+p felony cases, but for only a “judgment” 

ln misdemeanor cases. As used In the Constitution and 

this Act, Is the word y’sentence” to be construed as 

meaning also “.judgment”? We thlnk not. As stated in 

12 Tex. Jur., Par. 355, P. 717;~ “Judgment tina sentence 

are not the same thing; the twoare distinct and independent. ” Furthermore, both-the Constltutlon and 

this Act state that the courts shall have “the power, 

after conviction, to suspend the imposition. . . OS 

sentence” and then to place the defendant on probation. IS “sentencen means ‘judgment, nthen the courts 

have the power to suspend the imposing of a judgment 

and then to place the defendant on probation. There 

has to be a judgment before there is a conviction. If 

you do not impose a judgment, that Is,, suspend Its 
c: 89 

State Board of pardons snd Paroles, Page 9 (V-415pimposition, you do not have a conviction; and then to 

place a derendant under restraint of his liberty, by 

plaolng him on probation, would violate our Constltution, which provides that: 

%o citizen of this State shall be deprived of . . . liberty, . . . prlvlleg& 

except by the due course of the law 

&'tie land." 

You will further note that the following words are 

used in the Act: "of the sentence imposed";, "might 

have been sentenced"; "the sentency judge ; %hall - 

be sentenced." E word "judgment la never used. 

It appears to us that the language used ln 

providing for the probation of convicted defendants~ 

1s clear and unambiguous and therefore needs no constructiotr wlth the exception of that portion which ;. 

states that the probationer, In the event his probation Is revoked, may appeal the revocation, In that 

it does not state to whom such appeal will be made. 

The following Section 7 prwides.that the Board of 

Pardons and Paroles, created by the Constitution 

of this State ln Sec. 11, Art; IV thereof, shall administer the provisions of this Act snd shall also 

act as the State Board or Probation, The Legislature 

may have intended that the probationer would have.the 

right to appeal the revocation ,to such State Board 

of Probation; but, ln the absence of language so 

stating, we are l.ncll.n&d tothe view that such appeal 

should be made to the Court of Criminal Appeals as 

that Court has been granted appellate jurisdiction 

In all criminal m@ters. 

The only question that arises Ln our minds 

as to the authority of the LeglFjlature to give the 

courts of this State the right to release on probation a person who has been convicted of a criminal 

offense is the question as to whether or not such 

release on probation would conflict with the constitutional power granted to the Governor, after eonvictlon, to grant reprieves and commutations :oS 

punishment and pardons. OS course, if such release 

on probation Is a reprieve or a cOmmutatlOn of punishment or a pardon, then such action granting such 

power to the District Court would be unconstltutlonal 

In that such power .has been granted by the Constltutlon exclusively to the Governor of this State. The 
ic go State Board of Pardons.and Paroles, Page& (V-415) 

same would be true as to the portion of this Act, which 

will be hereinafter quoted, which gives the Board of 

Pardons and Paroles authority to release a convicted 

person on a parole with the approval of the Governor 

IS such parole is either a reprieve, commutation of 

punishment, or pardon. Hence our dlacusslon as to 

whether or not this act,lriglving the courts authority to release a person on probation Is in conflict 

with Section 11 of Article IV of our Constitution, 

will likewise apply to those provisions giving the 

Board of Pardons, with the approval of the Governor, 

theright to release.convlcted persons under a parole. 

A pardon 1s an act of grace proceeding from 

the power entrusted with the execution of the laws, 

which exempts the lndlvldual on whom it 5.8 bestowed 

from the punishment the law .lnSlicts for a crlise he 

has .commltted. Young v. Young, 61 Tex. 191; Ex Parte 

Rice, 162 S. W. 891. There are several kinds of pardons; thus a pardon may be full and uncondltlox+;' 

partial or conditional. Cam v. State, 19 Tex. App. 

635; A pardon Is condltional:.where it does not become 

operative until the grantee has performed some apeclSled act, or where it becomes void when some speclfled 

event transpires. Snodgrass v. State, 150 S. W. 162. 

Commutation of punishment Is the change of 

a punishment to which a person has been sentenced to 

a less severe one. gnodgrass v. State, 150 S. W. 162. 

A reprieve 1s the withdrawing of a sentence 

for an interval of time whereby the executlonthereof is postponed to a day certain. Snodgrass v. State, 

150 s. w. 162. 

A parole Is the conditional release of the 

convict before the expiration of his term, to remain 

subject, during the remainder thereof, to supervlsion 

by the public authority and to return to lmprlsonment 

on violation of the condition of the arole. 

of Prison Commissioners v. DeMoss, 16;'s. w. l%"'" 

The Court In-Corn. Rx. Rel, Banks v. Cain, reported In 

143 A.L.R., p. 1473, held that the power of parole 

ofas an adminlstratlve function whidh does not impinge 

upon the judicial power of‘sentencing the accused in 

conformity with the law; that the sentence was in nowise interfered with; that the parolee was not discharged but merely serves the remainder of his sentence 

by having his llberty.restra+ned in a manner ana&OgOus 

.,-. 
State Boapd of Pardons and Paroles, Page 11 (V-415k- 

:I- ~~.$I 

to that emp1oyed.M the "trusty" or '%onor"'system of 

prison discipline; and that a Parolee was merely serv: 

ing his time outside the prison walls which was In 

legal effect imprisonment. The Court further stated 

as Sollows: 

"A parole, . . . does not obliterate 

the crime or forgive the offender. It is not 

an act of clemency but a penologlcal measure 

for the UlscipUnary treatment of prisoners 

who seem capable of rehabilitation outside 

or prison walls. It does not set aside or 

affect the sentence; the convict remains in 

the legal custody of the state and under the 

control of Its agents, subject at any time, 

for a breach of condition, to be returned 

to the penal Institution. Neither Is a parole a commutation of sentence within the 

meaning of that term In the constitutional 

provision." 

The Constitution confers upon the Leglslat-e the power to define crimes and fix the punishment 

thereror. This Act does not authorize the courts or 

the Parole Board to suspend any law of this State; but 

the Legislature has provided that in certain contlngen- 

.cles, as part of the fixed punishment, the convicted 

defendant in felony cases may serve a portion of his 

sentenbe outslde the prison walls. This Act should be 

applied to and read Into each and every article or the 

penal code fixing unlshment for felony offenses. See 

Baker v. State, 15 t; S. We. 998. 

We are of the opinion that both the.probatlon 

and parole provisions of the Act in question constitute 

part of the punishment provided by the Legislature to 

be inflicted on those who offend agalnst~our criminal 

laws. To illustrate in reference to the burglary statute, as was done by the Court in the Baker case,. supra, 

since the passage of H. B. 120, 'such statute now reads 

as roiiows: 

'The offense of burglary Is constltuted by.enterlng a hou8.e by force with the $ntent to commit the crime of theft, and the 

punishment ~for the crime shall be lmprisonment In the penitentiary not less than two 

nor more than twelve years, provided that 

IS before trial the person charged with the 
i:: ,@ St&e Board of Pardons and Paroles, Page 12 (v-415) 

offense shall request In writing that the 

issue of whether or not he has ever before 

been convicted of a felony shall be submitted 

to the Jury, and If the jury shall find that 

such person ought not in any event be confined 

In the penitentiary for a longer time than 

five years, and has never before been conyicted of a felony,' they may in their verdict further find that no punishment shall be assessed, 

If within a given,period of time he commits 

no other offense against the laws of this. 

state; but in the event he shall commit another 

offense, then he should be punished by confinement in the penitentiary for a given period of 

time as stated in their verdict, and provided 

further, when it shall appear to'the satisfaction of the Court that the ends of justice and 

the best 'Interests of the public as well,as 

the defendant will be subserved thereby, the 

court shall have the power after conviction or 

a plea of guilty, and where the maxlmum punishment assessed the defendant does'not.exceed ten 

years Imprisonment, and where the defendant has 

not been previously convicted of a felony, to 

suspend the Imposition or the execution of sentence end place the, defendant on probation for 

the maximum period of the sentence Imposed, in 

accordance wtth the ternis'and prOViSiOnS of 

H. B. 120, Fiftieth Legislature of Texas, Andy 

provided further that the Board of Pardons and 

Pkroles. is authorized to release on parole with 

the approval of the Governor after he has been 

confined In any penal or correctional in&itutlon in this State, and after.he has served 

one-third of the maximum'sentence imposed, In 

accordance with the provisions of: H. B. No. 

120 of the Fiftieth Legislature. 

You will also note that the Se&ion il of Article 

IV of the Texas Constitutitin as amended in 1936 gave the 

Legislature the authority to enact 

will further note that paragraph (i P 

arole laws. You 

under Sec. 36 of 

the Act In question defines 

a "pardon, 

"Executive Clemency" to mean 

commutation of sentence, reprteve, remission 

of fine or forfeiture granted by the Govern05 or any of 

these, but not arole or any form of parole, and that 

in paragraph (J P under Sec. 36 It defines probation as 

the release of the convicted defendant by a court under 

conditions imposed by the cotit. Thus we find that the 
State Board of Pardons and Paroles, Page 13 (V-415) 

Constitution as well as the Legislature has construed 

the terms 'parole" and "probation" as not to constitute 

an act of executive clemency. We have examined the decisions of the courts In other states and find that 

they have held that a parole is not a commutation of 

punishment or a pardon. See State v. Duff, 144 Iowa 

142, 122 NW 829, 24LRA (NS) 625, 138 Am. St. Rep. 269; 

Rx Parte Patterson, 94 can. 439, 146 P. 1009; LRA 

1915 F. 541; George v. Lillard, 106 Ky. 820, 51 SW 

793, 1011; State ex rel. Bottomlr v. District Court. 

~~gMo;tb~~:, 237 P. 525; State';. Peters, 43 Ohio St. 

3 . 

The Court of Criminal Appeals In Rx Parte 

Black, 59 S. W. (2d) 828 held that a proclamation of 

the Governor which was termed a "furlough" and which 

merely postponed the time of servIngtithe sensence was 

.actually a 'reprieve" and was not a parole. The 

Court further held that a parole in Its legal aspect 

has no relation to the power conferred uponthe Governor in Sec. 11 of Article IV of the State Constltutlon to grant reprieves, commutations of punishment, 

or pardons.' 

Section 8 of the ActIn question creates a 

nomination committee for the purpose of certlfylng 

to the appointing authorities provided ln Sec. 11 of 

Article IV of our Constitution. persons eligible to be 

appointed to the Board of Pardons and Paroles. As 

stated above, It is.our opinion that this Section Is 

unconstitutional in that It is in direct conflict 

with said Section of the Constitution which-states 

that the only qualification needed to be eligible to 

be appointed to said Board is that the person appointed shall have been.a resident citizen of the State of 

Texas for a period of not less than two years immediately preceding such appointment. 9 R.C.L. 1124; 

Dickson v. Strickland (S. Ct.) 265 S.W. 1012. 

Section 9 of the Act provides for the 

$~,OOO.OO annual salary of the members of the Board 

of Pardons and Paroles and further provides that 

the Board shall meet at the call of the chairman 

or from time to time as may.be determined by a majority vote of the Board, and that a majority of the 

Board shall constitute a quorum for the transaction 

of all business. This Section is valid. The portion thereof which provides for an annual salary of 

$~,OOO.OO is ineffectual,, as stated above, in that 
E 94~ 

State Board of Pardons and Paroles;Page 14 (V-415) 

H. B. No. 807 limits the salary of the members of the 

Board of Pardons in such amount as is provided for e 

the General Appropriation Bill, which is there fixed 

at $4,764.00 for each year of the,'kurrent biennium. 

&?&ion 10 pertains to ~the duties of the 

Board of Pardons and Paroles which seems to be clear, 

and unambiguous and needs no Interpretation. 

Section il merely pkvldes for office quarters of the Board. 

Section 12, we feel, should be quoted in 

full. It reads as follows: 

?he Board Is hereby authorized to 

release on parole with the apprwal.of the 

Governor any person confined in any penal 

or correctional,lnatltutlon~ in this State, 

except persons-inider sentence of death, who 

has served one-third (l/3) of the e 

sentence .%npoeed, provided that in any . 

case he me9 be paroled after serving fifteen (15)~ years. All paroles shall Issue 

upon order of the Board..duly adopted and 

approved by the ffovernor. 

"Within one year after.hls admISsion 

and at such intervals thereaitir as It may 

determine, the Board shall secure and consider all pertinent Information regarding 

each prlsoner, except any under sentence 

of death, including the circumstances Of 

his offense, his previous social history 

and criminal record, his conduct, employment and attitude In prison, and the reports 

of such physical and mental examination as 

have been made. 

"Before ordering the parole of any 

prisoner, the Board may have the,prisoner 

appear before It and intervfew him. erole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered to be a 

reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangements have been made for his proper 

employment or for his maintenance and care, 
:.- - State Board of Pardons end Paroles, Page 15 (v-415)- 95. -; 

and when the Board believes that.he 18,. 

.able and willing to Ailfill the obllga: 

tions,of a law abId% cltlzti. ,.Every 

rlsoner while on psrole shall remain In 

e legal custody of the lnstltutlon from 

which he was released but shall be amenable to the orders of the Board. 

"The Board may adopt such other rules 

not Inconsistent with law as it may seem 

proper or necesssry,wlth respect to the 

ellgiblllty of prisoners for parole, the 

conduct of parole hearings, or conditions 

to be Imposed upon paroles. Whenever an 

order for parole is Issued it shall recite 

Ihe conditionathereof. 

"It shall be the duty of the Board at 

least ten (lO).days before ordering the parole of.any prisoner or upon the granting of 

executive clemency by the'Governor to notify 

the Sheriff, the District Attorney and the 

District Ju 

9 

e in the county,where such person was conv cted that such,p@role or clem-, 

tncy iS belng considered by the Board or by 

the Governor. 

"If no probation and parole offlcer.has 

been assigned to the locality where a person. 

Is to be.releassd on parole ~orexecutive~clem~ 

fncy the Board shall,notify the chairman of 

the Volunteer Parole Board of such co+y 

prior to the release of such person. The Board 

shall request such Volunteer Parole.Board, in 

the absence of a probation and parole officer 

for information which would hereinbe required 

of such duly appointed probation and parole officer. This shall not however preclude the 

Board.from requesting yormation from any 

agency In such locality. (Ukderscoring ours) 

Sections 13, 14, 15, 16, 17, .and 18 have reference to the powers and duties of the judges, blstrlct.attorneys, county attorneys,,pollce officers, prison offlclals, and Board of Pardons end Paroles In ZWferpXW to 

administering this law. Thea6 Sections appear to be 

plain and unambiguous, and we know of no provision of 

the Constitution with which they conflict. 
State Board $Pardons'and P&roles, .Page,l6 .(V-415)~ 

Section 19 authorizes the Board,upon a. showing of probable violation of parole to issue a warrant 

for the return of any paroled prisoner to the lnstltutlon from which he was paroled. It further provides 

that after the isstiance of such warrant the parolee 

shall~be deemed a fugitive from Justice. As stated 

above,,the Constltutlon of Texas grants to the Governor the sole power to revoke a parole., Until the Governor has exercised such power,>the parolee Is entitled. 

to his liberty. Section 19 Is therefore uncontitltutlonal. 

follows: 

The first paragraph of Section 20 reads as 

'Any prisoner whop commits a felony 

while at large upon parole and who is con- 

'victed and sentenced therefor may be required by the Board to'serve such sentencer 

after t$F original.sentenee h?s bten cornpleted. 

It ls'our opinion that this portion 6f See. 20 ti uncon; 

stitutlonal In that it makes it'dlscretlonary with the 

Board of Pardons and Paroles as to whether.or.'not a per- I 

son who is convicted and sentenced for a felony~~hlle at 

large upon a parole, will serve such sentence'as imposed 

by the Court- after the original sentence has been completed." The .Leglslature had the authority, as heretofore stated, to grant to the.Board the authority to 

release a prisoner under a parole, as such act does not 

amount to executive clemency; but it does not have the 

authority to vest in an administrative board the power 

to determ+e the tInis when a person convicted of a penal 

offense will be required to serve his sentence. Whether 

the sentences shall run concurrently or cumulatively 

is a judicial function. 

The follow~~~~portlon of Section 20 attempts 

to give the Board of Pardons and Paroles the authority 

to revoke paroles. As heretofore stated, this power 

has been conferred upon the Governor by the Constitution of Texas, and the Legislature does not have the 

authority to grant that power to said Board or to anyone else. 

Section 21 provides that when a paroled prlsoner has performed the,oblSgatlons of his parole for 

such time~as shall satisfy the Board that his final release is not incompatible with his welfare and that of 
State Board of Pa&dons and Paroleti,/Page 17 (V-415fr f%$ 

society, the Board of Pardons and Pai?oles may'make a 

final order of discharge and Issue to'the paroled - 

prisoner a certificate of discharge; It ls.our oplnIon that Section 21 is unconstitutional In that such 

order of discharge end the IssuSmce'to the paroled 

prisoner of a certificate of diticharge would In legal 

effect amount to a pardon.ln that it would exempt the 

person from the unexpired portion of the punishment 

inflicted upon him for the crime he had committed. 

As the Constitution confers the sole right of granting pardons to the Gove-or, the Legislature does not 

have the ,authority to grant this power to any other 

person 07 board. If the Board has power to reduce the 

maximum sentence, by releasing from parole before the 

expiration of that sentence, it has power to commute 

sentences, which authority, as heretofore stated, has 

been placed exclusively in the hands of.the Governor 

by the Constitution. And to pennit such action on 

the part of the Board would clearly interfere with 

the lawful judgment of 6 court. Board of Prison 

Com'rs. v. DeMoss 

(KY.) 169 S. W. 

KY.) 163 Si W. 183; Woods v. State 

5 4 ; Crimnonwealth.of Penn., Ex Rel 

Banks v. Cain et al, 143 A.L.R. 1473. .,' 

Stcticin 22 proV$des that the~Boar&of Pai?- 

~~~ie-'irila'-P~~~~s;'upon requ&st of the Governor,~.shall 

invtiiitigate and report to the,GoVeTnor In ~Feference 

to'sny person whqJiis being-,coxisldered by the Governor 

foYpardon, caaenutation of sentencei reprieve, or r+- 

misslomof fine or forfeiture and to make recommendations thereon. mls Section Is ~J.n harmony with Section 11 of Article IV of our Constitution and therefore In all respects valid. 

I 

Section 23 of the Act provlde~s for the 

Board appointing a person to the position of 'Director of Probation and Paroles".and defines the 

duties of,,such officer. This Section contemplates 

that such officer should receive a salary and perform full-time duties, but the Legislature has 

failed to make an appropriation for such salary; 

and by reason thereof said S~ection will have no 

force and effect until such time.as a subsequent 

Legislature may make such appropriation. 

Sections 24, 25, 26, 27, 28;and 29 provide for the appointment of probation and parole offleers and define their duties and powers sind provide 

for their assignment to various courts of the State. 
:;_-Y. gfJ 

State Boardcf Pardons and Paroles.,~ Page ,18 (V-415) 

It is contemplated from such, Sect$.ons that these probation and parole officers are to be full-time employees and receive a salary for their services. &wever , 

the Legislature has made no appropriations to pay the 

salaries of such officers and by reason thereof, such 

Sections are ineffectual until a subsequent Leglslature appropriates monies with which to pay the salaries of such officers. 

You will note that in Section 12 of. this. 

Act it is provided that in the event no probation 'and 

parole officer has been assigned to the locality 

where a person is to be released on parole or executive clemency, the Board shall notify the chairman 

of the Volunteer Parole Board of,~such county prior 

to the release of such person, and that the Board 

shall request such Volunteer Parole Board, in the 

absence of a~probatlon and parole officer, for information which would thereInbe required of such 

duly appointed probatlon~and parole officer; snd 

that Sectlon~fkrther provides thatthe Board Is not 

excluded from requesting Information from any agency 

in such locality. We realize that In the absence of 

a paid "Director of Probation-snd Psrold~,~ and in 

the absence 'or paid *Probation and-Parole Officers," 

assigned to the various courts throughout the State; 

and by reason ofthe insufficiency of,the appropriations with which to carry out the provisions of this 

Act, the Board Of Ps.??dOns~ and Paroles will be handicapped In their efforts In administering this law. 

However, the various Volunteer Parole Boards, the 

county officials, and peace officers will doubtless 

co-operate with the Board lnevery way and will be 

able, to a great extent, to perform the duties contemplated to be performed by these officers. 

Section 30 of the Act reads as follows: 

"The provisions of this act are hereby extended to all persons who, at the effective date thereof, are eligible to be 

placed on parole under the terms of this 

act with the same force and effect as if 

this act had been In operation at the 

time of such person's becoming eligible 

to be placed on parole. ," 

It is onr opinion that this provlsion is conStltutiQnal. Although at the time of these prior convictims this parole law was not written into the prescribed punishment, the Governor upon recommendation of 
99 

State Board of Pardons and Paroles, Page 19 (v-415) 

the~Board of Pardons and Paroles has the payer, after 

conviction, to grant pardons. Sec. 11, Art.,IV, Texas 

Constitution. .UMer.thls authority the Governor has 

heretofore granted conditional pardons, which, in 

fact, amounted to releasing under parole~as provided 

In this Act. As stated by the Courts, the Governor 

has the power to grant a partial pardon and place 

any conditions therein that are not "illegal, immoral or incapable of performance." This Act provides III effect that the parole granted by the Pardon 

Board shall not be effective until approved by the 

Governor. Therefore, In approving a parole granted 

to a person convicted before the effective date of 

this Act, the Governor would be In fact exercising 

his constitutional ower of executive clemency. 

Woods v. State (KY. 7 169 S. W. 558. 

Section 31 pertains to fees paid to various officers in criminal cases and provides that' the 

placing of a defendant on probation shall be consldered a flnal dlsposltlon of the case. This Section is 

plain, unambiguous, and constitutional. Section 32 

pr&'id&s that the .Act shall not beg construed to prevent or limit the exercise.by the Governor of the 

p6irir'rs'of executive clemency. This Section is plain, 

unsmblgiuous, and constitutional. Section 33 provides 

that this Act shall not apply to parole 'i'ram $nstltutlons for Juveniles... This Section Is plain, unamblguous,.and constitutional. Seatlon 34 repeazs the 

old parole law and all laws or parts of laws-in conflict with the Act. It sp.eclflcally provides that.' 

this Act shall not be cq&trued.as repealing Arts. 

776 through 781 of Vernon's -Annbtat&d.Statutes, 

Code of Criminal Procedure, which Is conrmonly.known 

as the suspended sentence law. These provlslons are 

valid. Section 35 of the Act provides that If any 

section, paragraph, part, sentence, clause, or phrase 

of the Act be held unconstltutlonal, that it shall 

not affect the validity of the remalnder,.and declares that the Legislature would have passed each 

and every section, paragraph,,part, sqntence, clause, 

and phrase of this Act severally. It Is oti opinion 

that although, as pointed out above, several sections 

or portions thereof are unconstitutional, the valid 

portions remaining constitute a full end complete act 

within Itself and should be administered by those entrusted therewith. 
.1, = L - . L&&l “:: 

State Board of Pardons and Paroles, Page 20 (V-4:5) 

Section 36 deflnee'varlous words andterms 

used in the Act. We find nothing In these definitions 

which ln any way conflicts with our Constltutlon; but, 

on the contrary, the,definitlons appear to be ln harmony therewith. 

House Bill 120, '. 0th Leglslature.(Probatlon and Parole Law 7 'In granting power to 

courts of record to place a convicted person 

on probation and in granting power to the 

Board of Pardons and Paroles to release on 

parole a'convlcted person Is constitutional. 

A parole is not, a reprieve or sny form or 

executive clemency. County courts, corporation courts, e&justice courts do not have 

the power, after conviction, to place the 

defends& on'probatlon. Section 8 of said 

Act creating a nomination committee to cer-, 

tify to the appointing authorltles those appllc~ts~kho are ellggible for appointment. '~.. 

to'the Board of Pardons and Paroles is unconstltutional because it is in conflict with 

Sec. 11 of Art. IV of the Texas Constitution. 

Section 20 of the Act, wherein it attempts to. 

authorize the Board of Pardons and Paroles to 

revoke paroles 1s unconstitutional In that it' 

is In conflict with Sec. 11 of Art. IV of the 

Texas Constitution, which provides that "The 

Wizn$r shall have the:power to revoke pa-' 

Unless and until the Governor revokes-the parole, the parolee 1s~ entitled 

to serve hls"sentence outside the prison 

walls. Each member of the Board of Pardons 

snd Paroles is entitled to receive an annual 

salary of $4,764.00 during the present blennium. It is the duty.of the Board of Pardons 

and Paroles to administer this Act insofar as 

they ten with whatever funds are available to 

them. The Board of Pardons and Paroles in 

making recommendations to the Governor for 

executive clemency 1s not required to consider the provisions of this~ Act. Whenever 

a court revokes a probation, the probationer 

may'appeal the revocation to the Court ef '~' 

CrlmlnaIAppeals. The determination of.whether a sentence under a subsequent conviction 
State Board of Pardons and Paroles, Page 21 

;I -’ to* 

(v-415)"; 

shall be cumulative or concurrent is a 

judicial function, and that portion of 

Sec. 20 of the Act attemptlng to confer 

this power upon the Board of Pardons and 

Paroles is unconstitutional. The Board 

of Pardons does not have the power to dlscharge a convicted person who has been paroled, before he has served the maxImum 

term of his sentence, as such an act would 

be a pardon; and this power has been vested solely in the Governor by the Constitution. Persons convicted before the effective date of this Act are eligible for 

parole by virtue of .the.Governor's pardoning power. Except as herein pointed 

out, this Act is constitutional. Sec. 11, 

Art. IV, Tex. Const.; Sec. ZlA, Art. IV, 

Tex. Const.; Snodgrass v. State, 150 S.W. 

162; Baker v. State, 158 S. W. 998; Rx 

Parte Black, 59 S. W. (2d) 828. 

Yours very truly 

ATTORREYGERERALOFTEXAS 

WVG/JCP 

W. V. Geppert 

Assistant 

APPROVEII: 

F*T+ 

ATTOREEYGEEERAL