THE ATTORNEY GENERAL 

Mr. Henry B. Keene 

Chairman 

Board of Pardons and 

Paroles 

P. 0. Box 13401 

Austin, Texas 78711 

Dear Mr. Keene: 

OF TEXiW3 

September 2, 1988 

Op.inion No. JM-950 

Re: Constitutionality of section 

27 of article 42.18 of the Texas 

Code of Criminal Procedure regarding contracting for parole 

services, and related questions 

(RQ-1477) 

The questions you ask involve the constitutionality 

of section 27 of article 42.18 of the Code of Criminal 

Procedure. Section 27 of article 42.18 provides: 

(a) The Board of Pardons and Paroles 

shall reouest nronosals and may award 

contracts to district probation offices to 

provide, parole services to persons released 

to the supervision of the board. The board 

may award a contract under this section if 

the board determines that: 

(1) the district probation office proposing to enter into the contract can provide 

qualified officers, types and levels of 

supervision, and a reporting system that are 

acceptable to the department: and 

(2) the services can be provided at a 

cost that is not less than 10 percent lower 

than the cost to the board of providing the 

same services. 

(b) A contract entered into under this 

section must contain: 

(1) a requirement that the district 

probation office provide qualified officers, 

types and levels of supervision, and 

reporting system that are acceptable to th: 

board: and 

P- 4795 
Mr Henry B. Keene - Page 2 (JM-950) 

(2) a provision authorizing the'board to 

monitor the performance of the district 

probation office to determine if the office 

is in compliance with the contract. 

(c) The board shall specifically request 

the district probation office serving Tarrant 

County and the district probation office 

serving Potter County to enter into a contract under this section. If a district 

probation office submits a proposal under 

this subsection that is acceptable to the 

board under the standards, terms, and conditions of this section, the board shall award 

the office a contract with a duration of two 

years. (Emphasis added.) 

You ask the following questions: 

1. Is Vernon's Ann. C.C.P. Article 42.18, 

Section 27 unconstitutional because it violates the separation of powers doctrine to 

require the Board of Pardons and Paroles to 

contract with district probation offices, 

specifically the district probation offices 

of Tarrant County and Potter County, to 

provide parole services to persons released 

to the supervision of the Board when a 

'proposal' is acceptable to the Board under 

the standards, terms and conditions of 

Vernon's Ann. C.C.P. Article 42.18, Section 

27? 

2. Does Vernon's Ann. C.C.P. Article 

42.18, Section 27 violate the separation of 

powers doctrine (Vernon's Ann. Tex. Const. 

Article XI, 5 l), by authorizing the judicial 

branch to usurp or otherwise circumvent the 

exclusive authority to determine parole 

granted to the Board of Pardons and Paroles 

by Vernon's Ann. Tex. Const. Article IV, 4 11 

land Vernon's Ann. C.C.P. Article 42.18 since 

probation officers will be required to take 

the following actions as a part of their 

duties in supervising persons under the 

Board's jurisdiction: (1) :.nvestigate/report 

violations of the conditions of parole, (2) 

give recommendations regarding the issuance 

of pre-revocation warrants or to continue on 

parole with or without modifications and/or 

P. 4796 
Mr Henry B. Keene - Page 3 (JM-950) 

the imposition of sanctions: (3) provide 

proof at an administrative release revocation 

hearing that a parolee violated the conditions of parole as alleged; (4) give recommendations as to what final action should be 

taken by the Board (either to revoke parole 

or continue under supervision) and (5) 

recommend the withdrawal of a pre-revocation 

warrant at any stage of the revocation 

process prior to the hearing? 

(3) Does Vernon's Ann. C.C.P. Article 

42.18, Section 27 violate the separation of 

powers doctrine (Vernon's Ann. Tex. Const. 

Article XI, § l), by authorizing the judicial 

branch to usurp or otherwise circumvent the 

exclusive authority of the Board of Pardons 

and Paroles to recommend pardons to the 

Governor under Vernon's Ann. Tex. Const. 

Article IV, § 11 and Vernon's Ann. C.C.P. 

Article 48.01 since Probation officers will 

be required as a part of their duties in 

supervising persons under the Board's jurisdiction to investigate full pardon applications and to make a recommendation to the 

Board of Pardons and Paroles as to whether a 

full pardon should be granted in a particular 

case or not? 

Without further analysis, we will assume that you are 

correct in your conclusion that a district probation office 

is a part of the judicial branch. All of your questions 

involve the separation of powers doctrine set forth in 

section I of article II of the Texas Constitution which 

provides: 

The powers of the Government of the State 

of Texas shall be divided into three distinct 

departments, each of which shall be confided 

to a separate body of magistracy, to wit: 

Those which are Legislative to one, those 

which are Executive to another, and those 

which are Judicial to another: and no person, 

or collection of persons, being of one of 

these departments, shall exercise any power 

properly attached to either of the others, 

except in the instances herein expressly 

permitted. 

P. 4797 
Mr Henry B. Keene - Page 4 (JM-950) 

In Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. 

APP. 1987) the court addressed the separation of powers 

doctrine. In Meshell the court stated: 

Article II, 0 1, in a single, tersely 

phrased paragraph, provides that the constitutional division of the government into 

three departments (Legislative, Executive and 

Judicial) shall remain intact, 'except in the 

instances herein expressly permitted.' This 

separation of the powers of government ensures 'that a power which has been granted to 

one department of government may be exercised 

only by that branch to the exclusion of 

others;' Ex carte Giles, 502 S.W.2d 774, 780 

(Tex. Cr. App. 197&), citing Snodsrass v. 

State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912). 

The separation of powers doctrine therefore 

requires that 'any attempt by one department 

of government to interfere with the powers of 

another is null and void.' Giles, surea, 

citing Ex carte Rice 

S.W. 891 (1914).----I 

72 Tex.&.ti. 587, 162 

Although one department has occasionally 

exercised a power that would otherwise seem 

to fit within the power of another department, our courts have only approved those 

actions when authorized by an express 

provision of the Constitution. See, mt 

Government Services I Underwriters 

Jones, 368 S.W.2d 560 ;:;x. 1963) (Legis 

ture could provide for legislative continuance under express power to establish rules 

of court in Article V, § 25, of the Texas 

Constitution); Ex carte Younablood, 251 S.W. 

509 (Tex.Cr.App. 1923) (Legislature could not 

delegate contempt power to committee under 

limited power of Article III, § 15, of the 

Texas Constitution). 

Section XI of article IV of the T:-:xas Constitution as 

amended at the general election Or, November 8, 1983, 

provides: 

1. The Leoislature shall bv law establish 

a Board of Pardons and Paroles and shall 

mre it to keen record of its actions and 

the reasons for its actions. The Leaislature 

shall have authority to enact narole laws. 

-, 

P. 4798 
Mr Henry B. Keene - Page 5 (JM-950) 

In all criminal cases, 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: and under such rules 

as the Legislature may prescribe, and upon 

the written recommendation and advice of a 

majority of the Board of Pardons and Paroles, 

he shall have the power to remit fines and 

forfeitures~. The Governor shall [have] the 

power to grant one reprieve in any capital 

case for a period not to exceed thirty (30) 

days; and he shall have power to revoke 

conditional pardons. With the advice and 

consent of the Legislature, he may grant 

reprieves, commutations of punishment and 

pardons in cases of treason. (Emphasis 

added.) 

Following the 1983 amendment, the legislature enacted 

Senate Bill No. 589 (article 42.18 of the Code of Criminal 

Procedure), Acts 1985, 69th Leg., ch. 427, § 2, effective 

September 1, 1985, designating the Board of Pardons and 

Paroles as the agency to handle matters of parole and 

mandatory supervision. Code Crim. Proc. art. 42.18, § 1. 

Section 2 of article 42.18 defines "parole" and 

"mandatory supervision" as follows: 

'Parole' the release of an 

eli:ible prisonerm~~~~ the physical custody 

of the Texas Department of Corrections to 

serve the remainder of his sentence under the 

supervision and control of the Board of 

Pardons and Paroles. Parole shall not be 

construed to mean a commutation of sentence 

or anv other form of executive clemencv. 

b. 'Mandatory supervision' means the 

release of an eligible prisoner from the 

physical custody of the Texas Department of 

Corrections but not on parole, to serve the 

remainder of his sentence under the supervision and control of the Board of Pardons 

and Paroles. Mandatorv sunervision mav not 

be construed as a commutation of sentence 

or v th r f rm of executive clemencv. 

(ErniEasPs zddez.) . 

p. 4799 
Mr Henry 5. Keene - Page 6 (JM-950) 

'A parole is distinguished from a pardon in that a 

parole does not end a prisoner's sentence but simply provides a different manner of serving the sentence than by 

confinement in a prison, whereas a pardon exempts the 

prisoner from punishment. 44 Tex. Jur.ld Pardon. ReDrieve, 

Commutation 5 2. 

In Rose v. State, 752 S.W.2d 529 (Tex. Crim. 1987), the 

court held that the instruction on the law of parole in the 

charge of the court to the jury given pursuant to section 

4(a) of article 37.07 of the Code of Criminal Procedure is 

unconstitutional as violative of the separation of powers 

doctrine. 

In reaching this conclusion, the court had occasion to 

review the effect of the 1983 amendment to section 11 of 

article IV as it related to the statute in question. In 

Rose the court stated: 

Now we must 'first determine whether constitutional principles barring jurors from 

considering parole laws have survived the 

revision of Article IV, § 11, effective when 

the voters approved the proposition submitted 

by S.J.R. No. 13 in 1983. 4 Vernon's Texas 

Session Law Service 1983, at A-158. As 

revised, 5 11 reads in pertinent part: 

'Section 11. The Legislature shall by 

law establish a Board of Pardons and 

Paroles and shall require it to keep 

record of its actions and the reasons for 

its actions. The Legislature shall have 

authority to enact parole laws. 

. . . . 

The second sentence in the first paragraph 

of revised .Q 11 is derived from former 5 11 

similarly providing that the legislature 

'shall have authority. to enact parole laws,' 

and we find no indi.:ation that the revision 

is intended to provide a broader scope of 

legislative authority in regard to parole 

laws than already possessed. Therefore, contrary to the view of [the] court of appeals, 

that the Legislature retains the authority 

granted in 1936 to enact parole laws is of 

little importance. What is crucial is the 

role of the Board, and to that we now turn. 

P. 4800 
Mr Henry B. Keene - Page 7 (JM-950) 

h 

Clemency power is inherent in sovereignty, 

and may be lodged in whole or in part 

wherever the people determine. EX Dart 

%' 

502 S.W.Zd 774, 780 (Tex.Cr.Appe 

. S i h v. Blackwell 

(Tex.&.ipE. 

, 500 S.W.2d 97, 100 

1973): E D ' r 

64 S.W.2: 77i:;80";:9:;); 

124 

Tex.Cr.R. 592, Ex 

parte Muncv 72 Tex.Cr.R. 541, 163 S.W. 29; 

44 (1914); $7 Tex.Jur.3d 263-264, 'Criminal 

Law’ 5 4381: 44 Tex.Jur.2d 5-6 'Pardon, 

Reprieve, and Commutation' S 2; Interpretive 

Commentary following Article IV, 5 11. 

In the second paragraph of § 11, as 

revised, the Governor retains power to grant 

.and to revoke a conditional pardon, as well 

as all other clemency powers save one 

formerly in the Governor. The effect of 

revised F, 11 is to remove parole eo nomine 

from the clemency power of the Governor and 

to vest that clemency power to grant and to 

revoke paroles in the Board. In the sense 

that the Governor, as chief executive, is no 

longer empowered to grant it, parole may 'not 

be construed to be any form of 'executive 

clemency,' Article 42.18, § 2a. But parole 

is an act of grace. Ex carte Lefors, 165 

Tex.Cr.R. 5, 303 S.W.2d 394, 397 (1957); 

united States v. Chasra 669 F.2d 241, 264 

(CA5 1982). it exists and is 

utilized -as 

So lona a; 

a tool of punishment and 

rehabilitation, jurisdiction, power and 

authority over parole must be exercised by 

some officer or agency of government. See 

and comnare Ex carte Grles, m, at 780 and 

Smith v. Blackwell sunra, at 101. The 

people have decided'in favor of the Board 

rather than the Governor, and the Legislature 

has effectuated that decision in Article 

42.18, V.A.C.C.P. Thus, parole is an act of 

clemency within the 'exclusive' jurisdiction, 

power and authority of the board. Id., 0 1. 

The caption of S.J.R. No. 13 characterizes 

the Board to be established as \a statutory 

agency,' meaning no more than it is a creature of statute. However, since in 1936 the 

Board was elevated to constitutional status 

in the Executive Department and the first 

sentence of the first paragraph in 5 11 

P. 4801 
Mr Henry B. Keene - Page 8 (JM-950) 

mandates the Legislature to establish a 

Board, we find that, whatever its characterization, the Board remains where it has always 

been -- in the Executive Department. See 

; s, ' Conti 

Distillino Sales Co., 199 S.W.2d 1009, loI:- 

1013 (Tex. Civ. App. -- Dallas 1947), writ 

refused n.r.e., 203 S.W.2d 288, 289, appeal 

dismissed, 332 U.S. 747, 68 S.Ct. 26, 92 

L.Ed. 335 (1947). Moreover, the legislation 

implementing the constitutional foundation 

for the Board expressly provides that 'it is 

subject to the Texas Sunset Act, but it is 

not abolished under that Act.' Article 

42.12, § 12a, V.A.C.C.P., see now Article 

42.18, M. See Texas Sunset Act, Government 

Code, § 325.014. Compare similar treatment 

of Secretary of State in Article 4330a, 

V.A.C.S. (1987 Pocket Part). 

Therefore, we conclude that since the 

Board of Pardons and Paroles is within and 

part of the Executive Department as contemplated by Article II, 5 1, 'the decision' to 

grant parole, if and when made, is beyond the 

province of the [Judicial, Department] . . . 

and is exclusively a matter within the 

[Executive Department], under proper 

regulation by the [Legislative Department]. 

Article IV, Section 11.' Beredia v. State, 

and Sanders v. State both.sunra. Accordingly, 'any attempt 'by one department of 

government to interfere with the powers of 

another is null and void.' )& narte Giles, 

su?xar at 780; State ex rel. Smith v. Blackwell. sunra, at 101. 

The remaining question is whether the leqislative mandate in Article 37.07, § 4(a), 

w, that the courts 'shall charge the jury 

in writing' the content of instruction given 

by the trial court in this cause, offends the 

separation of powers doctrine prescribed in 

Article II, 0 1. Finding the statute is an 

attempt by one department of government to 

direct another department to interfere with 

powers of yet a third department of qovernment, we hold that Article 37.07, 5 4(a) is 

unconstitutional. 

p. 4802 
Mr Henry B. Keene - Page 9 (JM-950) 

. . . . 

Both the statute and 

with a direct albeit 

a: 

the instruction begin 

erroneous statement, 

'Under the law -applicable to this case, 

the defendant, if sentenced to a term of 

imprisonment, may earn time off the 

sentence imDosed through the award of good 

conduct time.l 

The remainder of the first paragraph in both 

statute and instruction informs the jury 

generally about factors relevant to awarding 

good time and warranting taking it away. 

The second paragraph in each adds that 

length of imprisonment might be reduced by an 

award of parole. 

The third paragraph dictated by the 

statute reveals to the jury as 'the law 

applicable in this case,' the exact formula 

to determine when this appellant will become 

eligible for parole -- 'the actual time 

served equals one-third of the sentence 

imposed or 20 years, whichever is less, 

without consideration of any good conduct 

time he may earn' -- and gives a simple 

example: it points out that eligibility is 

not guarantee of parole. 

The jury is next informed that one cannot 

accurately predict 'how the parole law and 

good conduct time might be applied to this 

defendant,r because that depends on decisions 

made by 'prison and parole authorities.' 

At this point, however, in the fifth paragraph of both the jury is instructed: 'YOU 

mav consider the existence of the parole law 

and good conduct time.' That is -to say, when 

it comes to assess punishment the jury may 

deliberate on the content of what has been 

stated in the precedinq~ four paragraphs in 

making a decision as to the number of years 

it will assess as punishment. 

p. 4803 
Mr Henry B. Keene - Page 10 (JM-950) 

'The evil to be avoided is the consideration by the jury of parole in assessing punishment.' Clark v. State 643 S.W.2d 723 

725 (Tex.Cr.App. 1982). kather than avoid 

that evil the instruction mandated by the 

statute directly instructs the jury that in 

assessing punishment it may consider aspects 

of parole law contained in the instruction. 

It is of no constitutional consequence 

that thereafter excluded from consideration 

are 'the extent to which good conduct time 

may be applied to this particular defendant' 

by the authorities. Jurors have already been 

instructed that thev may consider the stated 

explanation of parole law and good conduct 

time, yet the Court has consistently held the 

parole law is not for the jury's consideration. - See -, ante at 2-4. 

The legislative mandate in Article 37.07, 

§ 4(a), suvra, is an attempt by the Legislative Department to direct the Judicial 

Department to interfere with exercise of 

powers of the Board of Pardons in the 

Executive Department and, as such it offends 

the separation of powers doctrine in Article 

II, 5 1. Accordingly we hold that Article 

37.07, 5 4(a) and the instruction required 

by it are unconstitutional. .(Footnotes in 

opinion are omitted.) 

Id. at 532-535. 

In your first question, you ask whether section 27 of 

article 42.18 is unconstitutional "because it violates the 

separation of powers doctrine to require the Board of 

Pardons and Paroles to contract with district probation 

offices." We do not construe section 27 to require that the 

board enter into a contract with district probation offices. 

Subsection (a) of section 27 states the board "shall request 

proposals and may award contracts" if the board determines 

that certain conditions exist.' Any contra'ct must provide 

for qualified officers and 'Ia reporting system that are 

acceptable to the board." In addition the contract must 

authorize the board to monitor the performance of the 

district probation office to determine if there is compliance with the contract. Subsection (c) further provides 

that the proposal for contract must be acceptable to the 

board under the conditions of this section. Unlike the 

p. 4804 
Mr Henry B. Keene - Page 11 (JM-950) 

c.. 

parole law instruction to the jury which allowed the 

judicial branch to effectively apply the parole law in 

assessing punishment, section 27 should not be construed as 

an attempt on the part of the Legislature to divest the 

Board of Pardons and Paroles of its authority to act on 

paroles. Any contract entered into with a probation office 

would have to be acceptable to the board. The probation 

offices and their reporting, systems would have to be 

acceptable to the board and the board would have authority 

to monitor the performancs of the district probation 

offices. The decision making process in determining what 

action is to be taken on a parole remains with the board. 

The separation of powers doctrine would have come into play 

if the legislature had attempted to delegate to the judicial 

branch the authority to apply the parole laws, a function 

given to the Board of Pardons and Paroles by the constitution. The legislature has no power to delegate a function 

"which it does not itself possess." Sun Oil v. Potter, 182 

S.W.2d 923 (Tex. Civ. App. - Austin 1944, reversed on other 

grounds, 189 S.W.2d 482). We do not construe section 27 of 

article 42.18 to permit the judicial branch to encroach on 

the authority of the Board of Pardons and Paroles in acting 

on paroles. 

In your second question, you ask whether the performance of certain duties by district probation offices 

under such a contract would violate the separation of powers 

doctrine. You advise that the duties of investigations and 

recommendations regarding paroles are the duties presently 

assigned to field supervising officers (who work for the 

board) as promulgated by the board and contained in its 

Field Services Manual. Rather than an attempt by the 

Legislative Department to interfere with the powers of the 

Board of Pardons and Paroles in the parole process, the 

duties you enumerate are promulgated by the board and the 

offices assigned to perform such functions are monitored 

by the board. No violation of the separation of powers 

doctrine is shown by virtue of the board requiring a 

district probation office with whom it may have a contract 

to perform certain duties prescribed by the board relative 

to the parole process. 

In your third question, you ask whether section 27 of 

article 42.18 authorizes the judicial branch (through its 

probation officers) to usurp the exclusive authority~of .the 

Board of Pardons and Paroles to recommend pardons to -the 

governor under section 11 of article IV of the Texas 

Constitution. While the amendment to section 11 of article 

IV removed the governor from the parole process it did not 

divest his authority to grant reprieves and commutation of 

P. 4805 
Mr Henry B. Keene - Page 12 (JM-950) 

punishment and pardons. Nor did the amendment alter the 

board's constitutional authority in the pardon process since 

the governor may act only "on the written recommendation and 

advice of the Board of Pardons and Paroles." 

Section 27 of article 42.18 provides the Board of 

Pardons and Paroles "may award contracts to a district 

probation office to provide parole services." Section 2 of 

article 42.18 expressly provides that "Parole shall not be 

construed as commutation of sentence or any other form of 

executive clemency." We do not construe section 27 of 

article 42.18 to authorize the board to enter into contracts 

with probation offices to perform any function relating to 

pardons or any form of executive clemency. The requirement 

that a probation office make a recommendation to the Board 

of Pardons and Paroles regarding pardons appears to be a 

rule promulgated by the board rather than a statutory duty 

imposed by the legislature. Section 27 of article 42.18 

does not impinge on the constitutional function of the Board 

of Pardons and Paroles to recommend or advise the governor 

relative .to "reprieves and commutation of punishment and 

pardons." 

SUMMARY 

Section 27 of article 42.18 does not 

violate.the separation of powers doctrine of 

the Texas Constitution by ~providinq that 

**[t]he Board of Pardons and Paroles shall 

request proposals and may award contracts to 

district probation offices to provide parole 

services -- if the board determines" that 

certain conditions exist. No violation of 

the separation of powers doctrine is shown by 

virtue of the board requiring a district 

probation office with whom it has a contract 

to perform certain duties prescribed by the 

board relative to the parole process. Section 

27 of article 42.18 does not impinge on the 

constitutional authority of. the Board of 

Pardons and Paroles to recommend or advise 

the governor relative to "reprieves and commutation of punishment and pardons." 

JIM MATTOX 

Attorney General of Texas 

P. 4806 
Mr Henry B. Keene - Page 13 (JM-950) 

NARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General . 

p. 4807