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
OplnlonNo. v2415

Re: Cons~ltutlonallty and construction

of Ii. B. ~120, 50th Legislature

Dear Sir:

You have requestedour opinion relative to variousmatters arisingby virtue of the "AdultPro+ batlon and Parole Len" passed by the 50th Legislature (H. B. 120). We will restate your questionsend answer each question immediatelyfollowingeach restatement. We will then proceed with a general dls-., cusslonas to our'constructlon of the Act and the l&w upon which we based our ::qswers;

QuestionNo. 1"'.

Ia Section 12 of H. B. 120, 50th Legislature,

constl~~~tlonally

valid tid does It supersedethe constitutional amendment that designates paroles as reprieves?

.We know of no constitutional amendmentthat designates

paroles as reprieves. In fact, a parole is not a reprieve or any form of executive clemency. Section 12 of said Act Is theraforenot unconstitutional
as being in conflictwith Section 11 of Article Ip of the Constitution

of Texas.
. QuestionNo. 2: Reprieveshaving been consideredby the'

pr&viouspenitentiaryofficialsas paroles, Is the,Boardof Pardons and Parolesunder H. B. 120 to consider such~terms,I*eprleves and paroles, as synonymous?

The Board of Pardons and 'Paroles should not considerreprievesand garole, as being synonymous.

## $1: 82 State Board of Pardons and Paroles, Page 2 (V-415)

QuestionNo. 3: Sections 1 to 7 inclusive have referenceto probation. Section 1 states "the courts of the State of Texas having original jurlsdiction of criminalactions, etc." Does this include corporationcourts, justice courts, and county courts in criminal cases for misdemeanors; and do such courts have the right to probate persons convictedtherein?

Corporationcourts, justice courts, and county courts do not have'the authorityunder this Act to place persons convictedin such.courts under probation.
QuestionNo. 4: Se&i&'7 states that the Board of Pardons.andParole& createdby the Constitution of this State shall administerthe provisionsof 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 creatinga committee, examlnirig

applicants. Wewould like to know whether
or not these two sectionsare ln conflictwith 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 conflictwith 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 referenceto probation. Section 8 of said Act Is unconstitutional In that it Is In conflictwith Sec. 11 of Art. IV; for the State Constitution provides only one qualification for members of the.Boardof Pardons and Paroles--that they "shallhave been resident citizens of the State of Texas for a period of not less than two years immediately preceding their appointment."
QuestionNo. 5: Does not the reference to probationrequire the trial judge who tries criminal
cases and puts a defendanton probation to retain jur- ~lsdlctlon

of the,caseand administersame; and that the Board of Pardons,and'Paroles should not take jurisdiction of such case until the party has violatedhis probationand been committedand receivedat the penitentiary of this State?State Board of Pardons and Paroles,Page 3 (V-415) ic ‘83

The ProbationAct does contemplatethat 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 officialsof the penltenMary or other place of correctional confinement,

the Court’s jurisdiction ceases. The Judge has performed his judicialfunctionsunder 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 Insofaras they possibly
can with whatever funds are availableto 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 institutionin this State, etcr Is’thlsnot ln conflictwith the Constltutlon undiir, which the Governorhas the authorityto-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 conflictwith 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.
QuestionNo. 8: Section 20 sets out, am~ti othir thinga, that a paroledprisonerwho la amused of vlolatlnghis parole,,~ls entitled to’s hearing and stateswhen the Board has determinedthis matter, they may revoke his parole. Is this not ln conflictwith the constitutional amendmentareatlng the Board OS Pardons ‘and‘Paroles, and placltig

this duty upon the Governor of then

State?
Sections

20, wherein’ltattempts 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 conflictwith that portion of aectloti 11 of Article IV of our Constitution, which provides that "The Governor shall have the power to revoke paroles."

QuestionNo. 9: Sectlon 19 authorizesthe Board to issue warrants for the return of a parolee to the penitentiary, upon findinga violationof his parole, and that any probationor parole officer or any other peace officermay. 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 legallygive such officer the right to make arrests
as stated therein?

Inasmuchas the Governor is the only person who can revoke a parole, such parolee Is entitled to his libertyunder such parole until it has been re-' voked by the Governor;and It is our opinion that, until such revocation, neither probationnor parole officers nor any other peace officermay arrest a parolee. and deprivehim of his libertyby virtue of such conviction, either upon a warrant issued by the Board of Pardons and Paroles or without suah warrant.

QuestionNo; 10: Section 9 requiresmembers 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 deficiencywarrant 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 salariesof those officerswhose salaries
are statutorily

and not constitutionally fixed at the
sums appropriatedtherefor for the currentbiennium. The currentmember salariesare only $4,764.00. There
csn be no deficiency IS the appropriated salariesare paid.
QuestionNo. 11: Should the Board in making its recommendationsfbr clemencyto the Governorplace ln such recommendations the conditions

required OS the parolee, or shoiild the Governorplace 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 Parolesupon the approval by the Governor. The Board, therefore, does not make recommendations for the release on parole-- but shouldgrant the parole by its own proclamation, snd should incorporate therein the conditionsrequired of the parolee,which should be submittedto the Governor for his approval or disapproval. OS course, such parole would not become effectiveuntil approvedby the Goverpor as provided for In the Act, and accepted by the parolee. 

### 85

QuestionNo. 12: Could the Board make recommendations

for clemencyUnder the cons@tutlonal amendmentcreatingthe Board, which does not refer to parole, and without consideringthe requirements referred to In the bill with referenceto parole?

Inasmuchas the granting of a parole' is not the -tit&g of executiye clemency, the Board ii making'z%Mmmeiidatlons to the,GovernorSor.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 conditionor conditiona not Illegal,immoral or Incapableof performance.

QuestionNo. 13: What is the difference,If any, with referenceto recoannendlng a reprieve; .aconditionalpardon, or a parole? They all have the effeat of releasinga prisoner f?%mthe penitentiary.

As stated above, the.Boarddoes not recommeid

a parole.

GEN!&U DIS&SSION

We note that In your first letter of request you state "the Board will appreciatean interpretation of the.Actas a whole;" .soIn addition to the answers above made to your specificquestiOns,~and the dlecusslon of the reasons for such answers to follow,we wUl attempt to Interpretthe Act as a whole as well as the various sectionsthereof.Ed

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-- ’ .; ,,;3& State Board of Pardons and Paroles, Page 6.(V-415)

Section 11 of Article IV of the Texas Constitutionbefore 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 punishmentand 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 sentencetherefor,until the close of the succeedingsession of the Legislature;

provided, that in all cases of remlsslons of fines and forfeitures, or grants of reprieve, commutationof punishmentor pardon, he shall file In the office of the Secretaryof State his reasons therefor." (Parenthetical matter ours)

Such Section as amended in 1936 reads as Sollows:

"There is hereby createda Board of Pardolls and Paroles, to be composedof three members~,

who shall have been-residentcitisens.of the State of Texas for,a period of not less than-twoyears Immediatelypreceding 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 appointedby 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 CriminalAppeals; the appointments of all members of said Board shall be'made with the advice and oonsent of two-thirdsof the Senate present. Each vacancy.shall be filled by the respectiveappointing power that theretofore

made the appointment to such position and the appolntlvepowers shall have the authorityto make recess appointmentsuntil the conveningof the Senate. ._

"In all criminal cases, except treason and impeachment,the Governor shall have power*State Board of Pardonsand 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 reprievesand 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 consentof the Legislature, he may grant reprieves,commutations of punlshment and pardons in cases oS.treason.

“The Legislatureshall have power to regulateprocedurebefore 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 crtiinalactions shallhave the power, after convlctlon, to suspendthe impositionor execution of sentenceand to place the defendant upon probationand to reimpose such sentence, under such conditionsas the Legislature may prescribe. ” ,,

We do not find any other provlalonsof our State Co~stltutlon that we deem applicableto’HouseBill 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 lmposltlonor~the execution of tientence

and placetheconvlcted defendantOn probationfor the maXimum period of~the sentence lm- ,posed. Such sectionsfurtherprovide for an lnvestlgatlon by a probationand parole officer of thencircastancesof the offense, criminalrecord, social history /c--

- 88 .’ 2, - St&e Board of Pardons and Paroles, Page 8 (V-415)

and present conditionof ~the defendant,as well as othermatters. It provides that such courts shall determine the terms and conditionsof the probationand lists various conditionsthat may be included In such probation,and provides that upon the expirationof the period of probation such courts by order shall discharge the defendant. It also provides that having dischargedthe defendant, such courtsmay set aside the verdlctorpermit the defendantto withdrawhis plea of guilty and dismiss the accusation;complaint,informationor Indictmentagainsthim ln a manner very similar to that provided for ln the case of a suspended sentence. It also provlde~s that such courtsmay Issue a warrant for the defendant for violationof any of the conditionsof the probationand provides that such courts shall grant a hearing on the questionof such violation,

without a jury, and may continueor 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 corporationcourts, 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 chargedwith misdemeanors. You~wlllnote that-boththe Constitution (Sec. 1lA OS Article IV) and this Act give the courts. the power, after conviction,

to suspend the lmposltlonor execution of sentenceand to place the defendantupon probation and to reimpose such sentence.

. -.” (Underscoringours). A sentence is imposed only In felony
cases. See Chapter 3 of. our Code of CriminalProcedure

. Such Chapterprovides for a “judgment” and a “sentence”,+p

felony cases, but for only a “judgment” ln misdemeanorcases. As used In the Constitution and this Act, Is the word y’sentence” to be construedas meaning also “.judgment”? We thlnk not. As stated in 12 Tex. Jur., Par. 355, P. 717;~“Judgmenttina sentence
are not the same thing; the twoare distinctand independent.

” Furthermore,

both-the Constltutlon and this Act state that the courts shall have “thepower, after conviction,to suspend the imposition.

. . OS sentence”and then to place the defendanton probation. IS “sentencen means ‘judgment,

n then 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 pardonssnd Paroles, Page 9 (V-415pimposition,

you do not have a conviction; and then to place a derendant

under restraintof his liberty,by plaolnghim on probation, would violate our Constltution, which providesthat:

%o citizenof this State shall be deprived of

. . . liberty,

. . . prlvlleg& exceptby the due course of the law &'tie land."

You will furthernote that the followingwords 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 languageused ln providingfor the probationof convicteddefendants~ 1s clear and unambiguous and thereforeneeds no constructiotr

wlth the exceptionof 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 followingSection 7 prwides.that the Board of Pardonsand Paroles,createdby the Constitution of this State ln Sec. 11, Art; IV thereof, shall administer the provisionsof this Act snd shall also act as the State Board or Probation, The Legislature may have intendedthat the probationer would have.the right to appeal the revocation,tosuch State Board of Probation;

but, ln the absence of language so stating,

we are l.ncll.n&d

to the view that such appeal shouldbe made to the Court of CriminalAppeals as that Court has been granted appellate jurisdiction In all criminal

m@ters.

The only questionthat arises Ln our minds
as to the authorityof the LeglFjlature to give the courts of this State the right to release on probation a person who has been convictedof a criminal offense is the questionas to whether or not such release on probation would conflictwith the constitutionalpower granted to the Governor,after eonvictlon,to grant reprievesand commutations :oS punishmentand pardons. OS course, if such release
on probation Is a reprieve or a cOmmutatlOnof punishmentor a pardon, then such action granting such power to the DistrictCourt would be unconstltutlonal In that such power .has been granted by the Constltutlon exclusivelyto the Governor of this State. Theic go State Board of Pardons.andParoles, Page& (V-415)

same would be true as to the portion of this Act, which will be hereinafterquoted,which gives the Board of Pardonsand Paroles authorityto release a convicted person on a parole with the approvalof the Governor IS such parole is either a reprieve,commutation of punishment,or pardon. Hence our dlacusslonas 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 likewiseapply to those provisionsgiving 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 proceedingfrom the power entrustedwith the executionof the laws, which exempts the lndlvldualon whom it 5.8 bestowed from the punishmentthe law .lnSlicts for a crlise

he has .commltted.Young v. Young, 61 Tex. 191; Ex Parte Rice, 162 S. W. 891. There are severalkinds 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 operativeuntil the grantee has performed some apeclSled act, or where it becomes void when some speclfled event transpires. Snodgrassv. State, 150 S. W. 162.

Commutationof punishment Is the change of
a punishmentto which a person has been sentencedto
a less severe one. gnodgrassv. State, 150 S. W. 162.

A reprieve 1s the withdrawingof a sentence for an intervalof time whereby the executlonthereof is postponedto a day certain. Snodgrassv. State, 150 s. w. 162.

A parole Is the conditional release of the convictbefore the expirationof his term, to remain subject,during the remainder thereof,to supervlsion by the public authorityand to return to lmprlsonment
on violationof the conditionof 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

functionwhidh does not impinge upon the judicialpower of‘sentencing the accused in conformity

with the law; that the sentencewas in nowise interfered

with; that the paroleewas not dischargedbut merely serves the remainderof 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 Paroleewas 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 clemencybut a penologlcal measure for the UlscipUnary treatmentof prisoners who seem capable of rehabilitation outside

or prison walls. It does not set aside or affect the sentence;the convictremains in the legal custody of the state and under the control of Its agents, subjectat any time, for a breach of condition,to be returned to the penal Institution. Neither Is a parole a commutationof sentencewithin the meaning of that term In the constitutional provision."

The Constitutionconfersupon the Leglslat-e the power to define crimes and fix the punishment thereror. This Act does not authorize the courts or the ParoleBoard 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 defendantin felony cases may serve a portion of his sentenbeoutslde the prison walls. This Act shouldbe applied to and read Into each and every article or the penal code fixing unlshment for felony offenses. See t; Baker v. State, 15 S. We.998.

We are of the opinion that both the.probatlon and parole provisionsof the Act in question constitute part of the punishmentprovided by the Legislatureto be inflictedon those who offend agalnst~ourcriminal laws. To illustratein reference to the burglary statute, as was done by the Court in the Baker case,. supra, since the passage of H. B. 120, 'such statutenow 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

~forthe crime shall be lmprisonment In the penitentiary not less than two
nor more than twelve years, provided that IS before trial the person chargedwith thei:: ,@ 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 convictedof 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 penitentiaryfor 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,periodof time he commits
no other offenseagainst the laws of this. state;but in the event he shall commit another offense,then he should be punished by confinement in the penitentiaryfor 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 justiceand the best 'Interests of the public as well,as the defendantwill be subserved thereby, the court shall have the power after convictionor a plea of guilty, and where the maxlmum punishment assessed the defendantdoes'not.exceed ten years Imprisonment, and where the defendanthas not been previouslyconvicted of a felony, to suspend the Impositionor the executionof sentence end place the, defendant on probationfor 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 authorizedto release on parole with the approval of the Governor after he has been confined In any penal or correctionalin&itutlon in this State, and after.he has served one-thirdof the maximum'sentenceimposed, 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 Legislaturethe authorityto enact will furthernote that paragraph (i Parole laws. You under Sec. 36 of the Act In questiondefines
a "pardon, "ExecutiveClemency"to mean

commutationof sentence,reprteve,remission of fine or forfeituregranted 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 probationas the release of the convicteddefendantby a court under conditionsimposedby the cotit. Thus we find that theState 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 executiveclemency. We have examinedthe decisions of the courts In other states and find that they have held that a paroleis not a commutation of punishmentor 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 CriminalAppeals In Rx Parte Black, 59 S. W. (2d) 828 held that a proclamation of the Governorwhich was termed a "furlough" and which merely postponed the time of servIngtithe sensencewas .actuallya 'reprieve" and was not a parole. The Court furtherheld that a parole in Its legal aspect has no relation to the power conferreduponthe 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 createsa nominationcommitteefor the purpose of certlfylng to the appointingauthorities provided ln Sec. 11 of Article IV of our Constitution. persons eligible to be appointedto the Board of Pardons and Paroles. As statedabove, 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 eligibleto be appointedto 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 immediatelypreceding such appointment. 9 R.C.L. 1124; Dicksonv. Strickland (S. Ct.) 265 S.W. 1012.

Section 9 of the Act provides for the $~,OOO.OOannual 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 majorityvote of the Board, and that a majority of the Board shall constitutea quorum for the transaction of all business. This Section is valid. The portion thereofwhich provides for an annual salary of $~,OOO.OOis 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 GeneralAppropriation 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 Paroleswhich seems to be clear, and unambiguousand needs no Interpretation.

Section il merely pkvldes for office quarters of the Board.

Section 12, we feel, shouldbe quoted in full. It reads as follows:

?he Board Is hereby authorizedto 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..dulyadopted and approvedby the ffovernor.

"Withinone year after.hlsadmISsion and at such intervalsthereaitiras It may determine, the Board shall secure and consider all pertinent Information regarding each prlsoner, except any under sentence of death, includingthe circumstances Of his offense,his previous socialhistory and criminalrecord,his conduct, employment and attitude In prison, and the reports of such physical and mental examination as have been made.

"Beforeorderingthe parole of any prisoner, the Board may have the,prisoner appear before It and intervfewhim. erole shall be ordered only for the best interest of society,not as an award of clemency; it shall not be consideredto be a reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangementshave been made for his proper employmentor for his maintenanceand 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,ofa law abId% cltlzti. ,.Every rlsonerwhile on psrole shall remain In
e legal custody of the lnstltutlonfrom which he was releasedbut shall be amenable to the orders of the Board.

"TheBoard 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 Imposedupon 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.anyprisoner or upon the granting of executiveclemencyby the'Governor to notify the Sheriff,the DistrictAttorney and the District Ju

9 e in the county,wheresuch person was conv cted that such,p@role or clem-, tncy iS belng considered by the Board or by the Governor.

"If no probationand parole offlcer.has been assigned to the localitywhere a person. Is to be.releassdon parole~orexecutive~clem~ fncy the Board shall,notify the chairmanof the Volunteer ParoleBoard of such co+y prior to the release of such person. The Board shall request such Volunteer Parole.Board, in the absence of a probationand parole officer for information

which would hereinbe required of such duly appointedprobation and parole officer. This shall not however preclude the Board.fromrequestingyormation 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 authorizesthe Board,upon a.showing of probableviolationof parole to issue a warrant for the return of any paroled prisoner to the lnstltutlon from which he was paroled. It furtherprovides that after the isstiance of such warrant the parolee shall~bedeemed a fugitive from Justice. As stated above,,theConstltutlon 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 thereforeuncontitltutlonal.

follows: The first paragraph of Section 20 reads as

'Anyprisonerwhop

commitsa felony while at large upon parole and who is con- 'victedand sentencedthereformay 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; stitutlonalIn that it makes it'dlscretlonary with the Board of Pardons and Paroles as to whether.or.'not a per- I
son who is convictedand sentencedfor a felony~~hlle at large upon a parole,will serve such sentence'asimposed by the Court- after the original sentencehas been completed." The .Leglslature had the authority,as heretofore stated, to grant to the.Board the authorityto release a prisonerunder a parole, as such act does not amount to executiveclemency;but it does not have the authorityto vest in an administrative board the power to determ+e the tInis when a person convictedof a penal offensewill be required to serve his sentence. Whether the sentencesshall run concurrently or cumulatively is a judicialfunction.

The follow~~~~portlon of Section 20 attempts to give the Board of Pardons and Paroles the authority to revoke paroles. As heretoforestated, this power has been conferredupon the Governorby the Constitution of Texas, and the Legislaturedoes not have the authorityto 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 ofState Board of Pa&donsand Paroleti,/Page 17 (V-415fr f%$

society, the Board of Pardonsand Pai?oles may'make a final order of dischargeand Issue to'the paroled - prisoner a certificate of discharge; It ls.our oplnIon that Section 21 is unconstitutional In that such order of dischargeend the IssuSmce'to the paroled prisoner of a certificate of diticharge

would In legal effect amount to a pardon.lnthat it would exempt the person from the unexpired portion of the punishment inflictedupon him for the crime he had committed. As the Constitution confersthe sole right of granting pardons to the Gove-or, the Legislaturedoes 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 releasingfrom parole before the expirationof that sentence,it has power to commute sentences,

which authority,

as heretofore stated,has been placed exclusivelyin the hands of.the Governor by the Constitution. And to pennit such action on the part of the Board would clearly interferewith the lawful judgmentof 6 court. Board of Prison Com'rs.v. DeMoss (KY.) 169 S. W. KY.) 163 Si W. 183; Woods v. State

54 ; 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,GoVeTnorIn ~Feference to'snyperson whqJiis being-,coxisldered

by the Governor foYpardon, caaenutation of sentenceireprieve,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 respectsvalid. I

Section 23 of the Act provlde~s for the Board appointinga person to the position of 'Director of Probationand Paroles".and defines the duties of,,such

officer. This Section contemplates that such officer should receive a salary and perform full-timeduties,but the Legislaturehas 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 contemplatedfrom such, Sect$.ons

that these probation and parole officers are to be full-time employees and receive a salary for their services. &wever , the Legislaturehas made no appropriationsto pay the salaries of such officers and by reason thereof, such Sections are ineffectualuntil a subsequentLeglslature 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 countyprior to the release of such person, and that the Board shall request such Volunteer Parole Board, in the absence of a~probatlonand parole officer, for informationwhich would thereInbe required of such duly appointedprobatlon~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 "Directorof Probation-sndPsrold~,~ and in the absence 'or

paid *Probation and-Parole Officers," assigned to the various courts throughout the State; and by reason ofthe insufficiencyof,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 administeringthis law. However, the various Volunteer Parole Boards, the county officials,and peace officerswill doubtless co-operatewith 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 Pardonsand Paroles,Page 19 (v-415)

the~Boardof Pardons and Paroleshas the payer, after conviction,to grant pardons. Sec. 11, Art.,IV, Texas Constitution. .UMer.thls authoritythe Governor has heretoforegranted conditional pardons,which, in fact, amounted to releasingunder parole~asprovided In this Act. As statedby the Courts, the Governor has the power to grant a partialpardon and place any conditionstherein that are not "illegal,immoral or incapableof performance." This Act provides III

effect that the parole grantedby the Pardon Board shall not be effective until approvedby the Governor. Therefore,In approvinga parole granted to a person convictedbefore the effectivedate of this Act, the Governorwould be In fact exercising his constitutional ower of executiveclemency. Woods v. State (KY. 169 S. W. 558. 7
Section 31 pertains to fees paid to various officers in criminalcases and provides that' the placing of a defendanton probation shall be consldered a flnal dlsposltlonof the case. This Section is plain, unambiguous, and constitutional. Section 32 pr&'id&s that the .Act shall not beg construedto prevent or limit the exercise.by the Governor of the p6irir'rs'of

executiveclemency. 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,.andconstitutional. 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 CriminalProcedure, which Is conrmonly.known
as the suspendedsentencelaw. 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,.anddeclares 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 completeact within Itself and shouldbe 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 conflictswith our Constltutlon; but,
on the contrary,the,definitlons appear to be ln harmony therewith.

House Bill 120, '.

0th Leglslature.(Probatlon and Parole Law 'In grantingpower to 7 courts of record to place a convicted person on probationand in grantingpower 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 executiveclemency. 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 creatinga nominationcommitteeto cer-, tify to the appointingauthorltles those appllc~ts~kho are ellggible for appointment. '~.. to'the Board of Pardons and Paroles is unconstltutional

because it is in conflictwith 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 conflictwith Sec. 11 of Art. IV of the Texas Constitution, which provides that "The Wizn$r shall have the:powerto revoke pa-'

Unless and until the Governorrevokes-theparole, the parolee 1s~ entitled to serve hls"sentenceoutside 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 presentblennium. It is the duty.of the Board of Pardons and Paroles to administerthis Act insofar as they ten with whatever funds are availableto them. The Board of Pardons and Paroles in making recommendations to the Governor for executiveclemency 1s not required to consider the provisions of this~ Act. Whenever
a court revokes a probation,the probationer may'appeal the revocationto the Court ef '~' CrlmlnaIAppeals. The determinationof.whether a sentenceunder a subsequentconvictionState Board of Pardonsand Paroles,Page 21 ;I

-’ to* (v-415)";

shall be cumulativeor concurrentis a judicialfunction,and that portion of Sec. 20 of the Act attemptlngto 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 Governorby the Constitution. Persons convictedbefore the effective date of this Act are eligible for parole by virtue of .the.Governor'spardoning power. Except as herein pointed out, this Act is constitutional. Sec. 11, Art. IV, Tex. Const.; Sec. ZlA, Art. IV, Tex. Const.; Snodgrassv. 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