### THE ATTORNEY GENERAL

Mr. Henry B.Keene Chairman Board of Pardons and Paroles P. 0. Box 13401 Austin, Texas 78711

DearMr. Keene: OF TEXiW3

September 2, 1988

Op.inionNo. JM-950

Re: Constitutionality of section 27of 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 27ofarticle 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 topersons released to the supervision of theboard. The board may award a contract under this section if theboard determines that:

(1) the district probation office proposing to enter into the contract can provide qualified officers, types and levels of supervision, and areporting system that are acceptable to the department: and

(2) the services can be provided at a cost that isnot less than 10percent lower than the cost to theboard ofproviding 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

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(2) aprovision authorizing the'board to monitor the performance of the district probation office to determine ifthe office is incompliance with the contract.
(c) Theboard 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 isacceptable to the board under the standards, terms, and conditions of this section, theboard shall award the office a contract with aduration of two years. (Emphasis added.)

You ask the following questions:

1. IsVernon's Ann. C.C.P. Article 42.18, Section 27unconstitutional 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 topersons released to the supervision of the Board when a 'proposal' isacceptable 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'sAnn. Tex. Const. Article XI, 5 l),by authorizing the judicial branch tousurp orotherwise circumvent the exclusive authority to determine parole granted to the Board of Pardons and Paroles byVernon's Ann. Tex. Const. Article IV, 4 11 landVernon'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 ofparole, (2) give recommendations regarding the issuance ofpre-revocation warrants or to continue on parole with or without modifications and/or

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the imposition of sanctions: (3)provide proof at anadministrative release revocation hearing that aparolee violated the conditions ofparole asalleged; (4)give recommendations as towhat final action should be taken by the Board (eitherto revoke parole
or continue under supervision) and (5) recommend thewithdrawal ofa pre-revocation warrant at any stage of the revocation process prior to thehearing?

(3) Does Vernon's Ann. C.C.P. Article 42.18, Section 27 violate the separation of powers doctrine (Vernon'sAnn. Tex. Const. Article XI, § l),by authorizing the judicial branch tousurp orotherwise 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 andVernon's Ann. C.C.P. Article 48.01 since Probation officers will be required asa part of their duties in supervising persons under the Board's jurisdiction to investigate fullpardon applications and tomake a recommendation to the Board of Pardons and Paroles as towhether a fullpardon should be granted inaparticular
case ornot?

Without further analysis, we will assume that you are correct inyour conclusion that adistrict probation office isapart of the judicial branch. All ofyour questions involve the separation of powers doctrine set forth in section I ofarticle IIof the Texas Constitution which provides:

The powers of the Government of the State

of Texas shall bedivided into three distinct departments, each ofwhich shallbe confided to a separate body ofmagistracy, to wit: Those which are Legislative to one, those which are Executive toanother, and those which areJudicial to another: and noperson, or collection ofpersons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

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InMeshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. APP. 1987) the court addressed the separation of powers doctrine. InMeshell 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 inthe instances herein expressly permitted.' This separation of the powers ofgovernment ensures 'thatapower which hasbeen granted to
one department ofgovernment 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, 67Tex.Cr.R. 615, 150S.W. 162 (1912). The separation of powers doctrine therefore requires that 'anyattempt by one department ofgovernment to interfere with the powers of another is null andvoid.' Giles, surea, citing Ex carte Rice S.W. 891 (1914).----I 72Tex.&.ti. 587, 162

Although one department has occasionally exercised apower thatwould otherwise seem to fitwithin the power ofanother 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 ofarticle IV of the T:-:xas Constitution as amended at the general election Or, November 8, 1983, provides:

1. The Leoislature shall bv law establish

aBoard of Pardons and Paroles and shall
mre itto keen record of itsactions and the reasons for itsactions. The Leaislature shall have authority to enact narole laws. -,

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Inall criminal cases, except treason and impeachment, the Governor shallhave power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles,
.oramajority thereof, to grant reprieves and commutations of punishment and pardons: andunder such rules
as the Legislature may prescribe, and upon thewritten 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 togrant one reprieve inany capital
case foraperiod 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 BillNo. 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 tohandle 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 ofhis sentence under the supervision and control of the Board of Pardons and Paroles. Parole shall not be construed tomean acommutation of sentence
or anv other formof 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 acommutation of sentence
or v th r frmof executive clemencv. (ErniEasPszddez.)
.

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'Aparole is distinguished from a pardon in that a parole does not end aprisoner's sentence but simply provides adifferent manner of serving the sentence than by confinement in a prison, whereas a pardon exempts the prisoner frompunishment. 44Tex. Jur.ld Pardon. ReDrieve, Commutation 5 2.

InRose v. State, 752 S.W.2d 529 (Tex.Crim. 1987), the court held that the instruction on the law ofparole 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 asviolative 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 IVas it related to the statute inquestion. In Rose the court stated:

Nowwemust 'firstdetermine whether constitutional principles barring jurors from considering parole laws have survived the revision ofArticle IV, § 11, effective when thevoters approved the proposition submitted by S.J.R. No. 13 in 1983. 4Vernon's Texas Session Law Service 1983, at A-158. As revised, 5 11reads inpertinent 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 itsactions. The Legislature shall have authority to enact parole laws.

. . . . The second sentence inthe first paragraph of revised .Q11 is derived from former 5 11 similarly providing that the legislature 'shallhave authority.to enact parole laws,' andwe find no indi.:ationthat the revision is intended toprovide abroader scope of legislative authority in regard to parole laws than already possessed. Therefore, contrary to theview 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 thatwe now turn.

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h Clemency power is inherent insovereignty, 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 ihv. Blackwell (Tex.&.ipE. ,500 S.W.2d 97, 100

1973): E D 'r 64S.W.2: 77i:;80";:9:;); 124 Tex.Cr.R. 592, Ex parte Muncv 72Tex.Cr.R. 541, 163 S.W. 29; 44 (1914); $7 Tex.Jur.3d 263-264, 'Criminal

Law’ 54381: 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 .andto 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 tovest that clemency power togrant and to revoke paroles in the Board. In the sense that the Governor, as chief executive, is no longer empowered togrant it,parole may 'not be construed tobe any form of 'executive clemency,' Article 42.18, §2a. But parole isan 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 (CA51982). itexists 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 oragency ofgovernment. 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 isan act of clemency within the 'exclusive' jurisdiction, power and authority of theboard. Id., 0 1.

The caption of S.J.R. No. 13characterizes the Board tobe established as \a statutory agency,' meaning nomore than it isa creature of statute. However, since in 1936 the Board was elevated to constitutional status inthe Executive Department and the first sentence of the first paragraph in 5 11

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mandates the Legislature to establish a Board, we find that, whatever itscharacterization, the Board remains where ithas 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. (1987Pocket Part).
Therefore, we conclude that since the Board of Pardons and Paroles iswithin and part of the Executive Department as contemplated byArticle II, 5 1, 'thedecision' to grant parole, ifandwhen made, isbeyond 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 isnull and void.' )& narte Giles, 

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

The remaining question iswhether the leqislative mandate inArticle 37.07, §4(a), w, that the courts 'shall charge the jury inwriting' the content of instruction given by the trial court inthis cause, offends the separation ofpowers doctrine prescribed in Article II, 0 1. Finding the statute is an attempt **by** one department ofgovernment to direct another department to interfere with powers ofyet a third department of qovernment, we hold that Article 37.07, 54(a) is unconstitutional.

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. . . . Both the statute and with a direct albeit
a: the instruction begin
erroneous statement,

'Underthe law-applicableto this case, the defendant, ifsentenced to aterm of imprisonment, may earn **time** off the sentence imDosed through the award ofgood conduct time.l

The remainder of the firstparagraph in both statute and instruction informs the jury generally about factors relevant to awarding good time andwarranting taking itaway.

The second paragraph ineach adds that length of imprisonment might be reduced by an award ofparole.

The third paragraph dictated by the statute reveals to the jury as 'the law applicable inthis case,' the exact formula todetermine 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 ofparole.

The jury isnext informed that one cannot accurately predict 'howthe parole law and good conduct time might be applied to this defendant,r because that depends ondecisions made by 'prison andparole authorities.'

At this point, however, inthe fifth paragraph ofboth the jury is instructed: 'YOU
**mav** consider the existence of the parole law and good conduct time.' That is-tosay,when itcomes to assess punishment the jury **may** deliberate on the content of what has been stated in the precedinq~ fourparagraphs in making adecision as to the number of years itwill assess aspunishment.

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'Theevil tobe avoided isthe consideration by the jury ofparole inassessing 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 itmay consider aspects ofparole lawcontained inthe instruction.

It is of no constitutional consequence that thereafter excluded from consideration
are 'theextent towhich 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 isnot forthe jury's consideration. See ante

- -, at 2-4.

The legislative mandate inArticle 37.07, § 4(a), suvra, isanattempt 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 itare unconstitutional. .(Footnotes in opinion are omitted.)

Id. at 532-535.

Inyour first question, you askwhether section 27 of article 42.18 isunconstitutional "because itviolates 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 acontract with district probation offices. Subsection (a)of section 27 states theboard "shall request proposals andmay award contracts" if theboard determines that certain conditions exist.' Any contra'ctmust provide for qualified officers and 'Iareporting system that are acceptable to theboard." Inaddition the contract must authorize the board to monitor the performance of the district probation office to determine ifthere is compliance with the contract. Subsection (c)further provides that the proposal forcontract must be acceptable to the board under the conditions of this section. Unlike the

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c..
parole law instruction to the jury which allowed the

judicial branch to effectively apply the parole law in assessing punishment, section 27 should notbe construed as an attempt on the part of the Legislature to divest the Board of Pardons and Paroles of itsauthority to act on paroles. Any contract entered intowith aprobation office would have to be acceptable to the board. The probation offices and their reporting, systems would have to be acceptable to theboard and the board would have authority to monitor the performancs of the district probation offices. The decision making process indetermining what action istobe taken on aparole remains with the board. The separation ofpowers doctrine would have come into play ifthe 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 todelegate a function "which itdoes not itself possess." Sun Oilv. Potter, 182 S.W.2d 923 (Tex.Civ. App. -Austin 1944, reversed on other grounds, 189 S.W.2d 482). We donot construe section 27 of article 42.18 topermit the judicial branch to encroach on the authority of the Board of Pardons and Paroles in acting
onparoles.

Inyour second question, you ask whether the performance of certain duties bydistrict probation offices under such acontract would violate the separation ofpowers 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 theboard 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 toperform such functions are monitored by theboard. Noviolation of the separation of powers doctrine is shown by virtue of the board requiring a district probation officewithwhom itmay have a contract toperform certain duties prescribed by theboard relative to the parole process.

Inyour third question, you askwhether section 27 of article 42.18 authorizes the judicial branch (through its probation officers) tousurp 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 11of article IVremoved the governor from the parole process itdid not divest his authority to grant reprieves and commutation of



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punishment and pardons. Nor did the amendment alter the board's constitutional authority inthe pardon process since the governor may act only "onthewritten 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 toprovide 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 theboard to enter into contracts with probation offices to perform any function relating to pardons or any form of executive clemency. The requirement that aprobation office make arecommendation 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 ofpowers doctrine of the Texas Constitution by ~providinq that **[t]heBoard of Pardons and Paroles shall request proposals andmay award contracts to district probation offices to provide parole services -- if the board determines" that certain conditions exist. No violation of the separation ofpowers doctrine is shown by virtue of the board requiring a district probation office withwhom ithas a contract to perform certain duties prescribed by the board relative to the parole process. Section 27 ofarticle 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 ofpunishment and pardons."

JIM MATTOX Attorney General of Texas

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NARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by TomG. Davis Assistant Attorney General
.

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