May 6. 1974 

The Honorable William H. Skelton 

Chairman 

Board of Pardons and Paroles 

Room 501 John H. Reagan Building 

Austin, Texas 78701 

Dear Mr. Skelton: 

i 

Opinion No. H- 295 

Re: The authority of the 

Board of Pardons and 

Paroles in regard to 

prisoners whose convictions ore still on 

appeal 

You have asked our opinion on three questions relating to the authority of the Board of Pardons and Paroles to recommend reprieves and 

paroles of persons incarcerated in a, facility of the 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 of Corrections if the 

inmate has a conviction on appeal?” 

~2. “Does the Board of Pardons and Paroles have 

the authority to consider the case of an inmate confined 

in the Texas Department of Corrections for parole and 

recommend parole to the Governor when the inmate has 

a conviction on appeal? ” 

Your inquiries are necessitated by recent amendments to Articles 

42.03 and 42.09, Vernon’s Texas Code of Criminal Procedure, which permit 

the transfer of persons to the Texas Department of Corrections while their 

appeals are pending. 

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

The primary basis for the authority of the Board of Pardons and 

Paroles is found in Article 4, $11, of the Texas Constitution which provides 

in part: 

“In all criminal casts, except treason and 

impeachment, the Governor shall have power, after 

conviction, on the written signed recommendation 

and advice of the Board of Pardons and Paroles, or 

a majority thereof, to grant reprieves and commutations of punishment and pardons. . . .‘I 

In Texas a felony conviction ordinarily is not considered final until 

after it has 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 

of guilty. Whan v. State, 485 S. W. 2d 275 (Tex. Crim. 1972); Goss v. State, 

298 S. W. 585 (Tex. Crim. 1927); Snodgrass v. State, 150 S. W. 162 (Tex. Crim. 

1912). Under this reasoning it has been judicially determined that commutations may be granted before the completion of the 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, 411 U.S. 909 (1973); Hall v. State, 488 

S. W. 2d 94 (Tex. Crim. 1973); Whan v. State, %pra. See, Snodgrass v.State, 

supra, and Article 42.07, Vernon’s Texas Code of Criminal Procedure, for 

language strongly indicating that the same rule applies to pardons. 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 to your first and second questions, it is our opinion 

that the Board of Pardons 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 on a negative 

answer to your 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 of Pardons and Paroles has the authority 

to recommend a prisoner for an indefinite medical reprieve, 

an emergency reprieve .or a parole even though the prisoner’s conviction has not yet been reviewed by the Court of 

Criminal Appeals. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1375