May 6. 1974
The Honorable William H. Skelton Chairman Board ofPardons and Paroles Room 501John H. Reagan Building Austin, Texas 78701
Dear Mr. Skelton: i Opinion No. H- 295 Re: The authority ofthe Board ofPardons and Paroles in regard to prisoners whose convictions ore still on appeal You have asked our opinion onthree questions relating to the authority ofthe Board ofPardons and Paroles to recommend reprieves and paroles ofpersons incarcerated ina,facility ofthe Texas Department of Corrections while their cases are being appealed. Your first two questions are: 1. “Does the Board of Pardons and Paroles have

the authority to recommend tc the Goyvernor an Indefinite Medical Reprieve or Emergency Reprieve for an inmate confined in the Texas Department ofCorrections if the inmate has a conviction on appeal?” ~2.“Does the Board of Pardons and Paroles have the authority to consider the case ofan inmate confined in the Texas Department of Corrections for parole and recommend parole to the Governor when the inmate has a conviction onappeal? ” Your inquiries are necessitated by recent amendments toArticles 42.03 and 42.09, Vernon’s Texas Code of Criminal Procedure, which permit the transfer ofpersons to the Texas Department of Corrections while their appeals are pending.

p. 1373The Honorable William H. Skelton, page 2 (H-295)

The primary basis for the authority ofthe Board ofPardons and Paroles is found inArticle 4, $11, ofthe Texas Constitution which provides in part:

“In all criminal casts, except treason and

impeachment, the Governor shall have power, after conviction, on thewritten signed recommendation and advice ofthe Board ofPardons and Paroles, or a majority thereof, to grant reprieves and commutations ofpunishment and pardons.
. . .‘I In Texas a felony conviction ordinarily is not considered final until after ithas been affirmed by the Court of Criminal Appeals, Pruett v. Texas, 470 F. 2d ,ll82 (5th Cir. 1973, en bane), aff’d mem. u.s 38 L. Ed. 2d 39 (Oct. 9, 1973); however, the term “after conviction” asused in relation to reprieves, pardons and commutations has been held to mean after a verdict ofguilty. Whan v. State, 485 S.W. 2d 275 (Tex. Crim. 1972); Goss v. State, 298 S.W. 585 (Tex. Crim. 1927); Snodgrass v. State, 150S.W. 162 (Tex. Crim. 1912). Under this reasoning ithas been judicially determined that commutations may be granted before the completion ofthe appellate process. Stanley v. State, 490 S.W. 2d 828 (Tex. Crim. 1973); Cherry v. State, 488 S.W. 2d 744 (Tex. Grim. 1973), cert. denied, 411U.S. 909 (1973); Hall v. State, 488 S.W. 2d 94 (Tex. Crim. 1973); Whan v. State, %pra. See, Snodgrass v.State, supra, andArticle 42.07, Vernon’s Texas Code of Criminal Procedure, for language strongly indicating that the same rule applies topardons. We believe the same conclusion must be reached in respect to reprieves. Paroles are conditional pardons, Ex parte Lefors, 303 S.W. 2d 394 (Tex. Crim. 1957). and would be governed by the same rule controlling pardons. Therefore, in answer toyour first and second questions, it is our opinion that the Board ofPardons and Paroles has the authority to recommend an indefinite medical reprieve, an emergency reprieve or a parole for a prisoner whose case is still being appealed. Your third question is conditioned ona negative answer toyour second question; and therefore, it is unnecessary for us to consider it.

p. 1374. I

The Honorable William H. Skelton, page 3 (H-295)

SUMMARY The Board ofPardons and Paroles has the authority to recommend aprisoner for an indefinite medical reprieve, an emergency reprieve .ora parole even though the prisoner’s conviction has notyet been reviewed by the Court of Criminal Appeals. Very truly yours,

Attorney General of Texas APPROVED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 1375