Honorable A. C. Turner Opinion No. M-981 

Chairman 

Board of Pardons and Paroles Re: Authority of Board 

Room 501 of Pardons and Paroles 

John H. Reagan Building to conunute the Death 

Austin, Texas 78701 Sentence to a Life 

Sentence upon reversal 

of penalty in a case 

by the United States 

Supreme Court under 

facts presented, and 

Dear Mr. Turner: related question. 

You have recently requested an opinion on the following 

facts: 

"This Board would like to know if it has 

the authority, under the law, to commute the 

DEATH sentence to a LIFE sentence in view of 

the action by the United States Supreme Court 

in reversing the penalty in this case. Can 

this Board act in this case without the application of the inmate for a Commutation of 

Sentence? 

"In view of the ruling of the United 

States Suprene Court in this case, is this 

innate under a DEATH sentence at this time, 

and what action can this Board take under the 

law? 

"Is this Board required to have a hearing 

in the event it has the authority to act in 

this case? 

"Did the defendant request a Commutation 

of Sentence in his action to the Supreme Court 

of the United States?' 

In keeping with our policy of not giving opinions on matters 

presently in litigation we cannot answer your questions regarding 

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ttonorable A. C. Turner, page 2 (M-981) 

the Quintana case. However, for your guidance, we will honor 

your request for advice in this general area. This advice does 

not necessarily control any specific case. 

Article 40.01, C.C.P., provides, 

*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 punishments and pardons; . . .I 

This Article is taken verbatim from the second paragraph of 

Article IV, Section 11 of the Texas Constitution. 

The power of the Governor to grant commutations of punishment after conviction, has been provided in the Constitution of 

Texas from its inception. Although Article IV, Section 11 of 

the Texas Constitution has been amended, this basic grant of 

authority remains unchanged, except it now provides that the 

Governor has this power "on the written signed recommendation 

a&advice of the Board of Pardons and Paroles, or a majority 

thereof". 

This constitutional power of the Board of Pardons and 

Paroles and the Governor can be exercised at any time "after 

conviction,*. In this context the phrase "after conviction" 

means after a finding of guilty. As Stated by the Court in 

Snodqrass v. State, 150 S.W. 162 (Tex.Crim. 19121, 

I Under the connnon law, a person was 

said t; be'convicted of the crime when verdict 

was rendered thereon adjudging him guilty, . . ." 

(at p. 172). 

I . . . 

* The foregoing references show that 

the orkAa& meaning of the word 'conviction' is 

the verdict of guilty pronounced by a jury. . .I 

(at p. 173). 

I . . . Thus it is seen that the terms 'after 

conviction' in our Constitution do not embrace the 

sentence, but simply mean the determination of 

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Honorable A. C. Turner, page 3 (M-981) 

quilt by the tribunal authorized to try the issue 

of quilt or innocence of a defendant, and the 

person becomes subject to pardon whenever that 

issue is finally determined.' (at p. 174). 

This interpretation is supported by the language of 

Article IV, Section llA, added to the Texas Constitution in 

1935. Section 1lA granted authority to the Courts of Texas 

having original jurisdiction of criminal actions to suspend the 

imposition or execution of sentences and place defendants on 

probation *after conviction". In Article IV, Sections 11 and 

1lA of our Constitution, the term *after conviction" means only 

that the defendant must have been found guilty. The executive 

power to commute attaches as soon as punishment is assessed, 

without regard to whether the conviction is on appeal or has 

become a "final" conviction. Davenport v. State, 78 S.W.Zd 

605 (Tex.Crim. 1935); Goss v. State, 298 s. . 585 (Tex.Crim. 

1927); 138 ALR 1162, 1164. 

Therefore, even though a death penalty conviction may be 

on appeal, the executive power to commute that death sentence 

to life imprisonment exists. Even though the United States 

Supreme Court may reverse a judgment insofar as it imposes 

the death penalty and remand the case back to the Texas Courts 

for further proceedings in conformity with its judgment, unless 

and until the Texas Court takes final action on the case, it is 

still a conviction subject to the executive power to commute. 

'Commutation of sentence means the change of 

the punishment assessed to a less severe one. It 

differs from a pardon in that it may be imposed 

without consent of the convict or against his will." 

EX Parte Lefors, 303 S.W.2d (Tex.Crim. 1957). 

The Board of Pardons and Paroles can recommend to the 

Governor that a death sentence be commuted to life imprisonment, 

and the Governor, pursuant to such recommendation, can commute 

the sentence without consent of the convict. Neither do we find 

in our laws any requirement that the Board of Pardons and Paroles 

conduct a hearing before it recommends commutation nor before 

commutation is given. 

--w-e-- SUMMARY 

The questions regarding a specific case 

presently in litigation are unanswered. However, 

the Board of Pardons and Paroles generally can 

-4786- 
Honorable A. C. Turner, page 4 (M-981) 

recommend and the Governor, baaed on such 

recoasmndation, can commute a death sentence 

to life imprieonmant even though the conviction 

is on appeal and has not been finally determined 

by the Texas Courts. The Board and Governor 

may do the sama even though the United States 

Supreme Court may reverse a judqmant insofar as 

it imposes the death penalty and remands the 

case to the Texas Court for further proceedings 

in conformity with its judgment, so long as the 

Texas Court has taken no final action in the case. 

n 

R{$ectfully submitted, 

B 

7 ' G!v 

RDC.RARTI F 

ey General of Texas 

Prepared by W. Barton Bolinq 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Dunklin Sullivan 

Gordan Caaa 

Sam Jones 

Bob Lattimore 

SAM XDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WRITE 

First Aaaistant 

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