HonorableA. C. Turner Opinion No. M-981

Chairman Board of Pardons and Paroles Re: Authorityof 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: relatedquestion.
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 SupremeCourt in reversingthe penalty in this case. Can this Board act in this case without the applicationof the inmate for a Commutationof Sentence?
"In view of the ruling **of** the United States Suprene Court in this case, is this innate under a DEATH sentenceat 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 keepingwith our policy of not giving opinions on matters presently in litigationwe cannot answer your questionsregarding -4784-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 necessarilycontrol any specificcase. Article 40.01, C.C.P., provides, *In all criminalcases, 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 commutationsof punishmentsand pardons;

. . .I This Article is taken verbatim from the second paragraphof 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. AlthoughArticle IV, Section 11 of the Texas Constitution has been amended, this basic grant of authority remains unchanged,except it now provides that the Governorhas 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 exercisedat any time "after conviction,*.In this context the phrase "after conviction" means after a finding **of** guilty. **As** Stated by the Court in Snodqrassv. State, 150 S.W. 162 (Tex.Crim. 19121, I Under the connnon law, a person was said t; be'convictedof **the crime**  when verdict was rendered thereon adjudginghim guilty,

. . ." (at p. 172). I

. . . * The foregoingreferences show that the orkAa& meaning of the word 'conviction' is the verdict **of** guilty pronouncedby 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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quilt by the tribunal authorizedto try the issue of quilt or innocence**of** a defendant,and the person becomes subject to pardon whenever that issue is finallydetermined.' (at p. 174). This interpretation is supportedby the language **of** Article IV, Section llA, added to the Texas Constitutionin 1935. Section 1lA granted authorityto the Courts of Texas having original jurisdiction of criminalactions to suspend the impositionor executionof sentencesand place defendantson probation ***after** conviction". In Article IV, Sections 11 and 1lA of our Constitution,the term *after conviction" means only that the defendantmust have been found guilty. The executive power to commute attaches as soon as punishmentis assessed, without regard to whether the convictionis on appeal or has become a "final" conviction. Davenportv. 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 executivepower to **commute** that death sentence to life imprisonmentexists. 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 furtherproceedingsin conformity with its judgment,unless and until the Texas Court takes final action on the case, it is still a convictionsubject to the executivepower to commute.

'Commutationof sentencemeans the change of the punishmentassessed to a less severe one. It differs from a pardon in that it may be imposed without consent of the convict or againsthis will." EX Parte Lefors, 303 S.W.2d (Tex.Crim. 1957). The Board of Pardons and Paroles can recommendto the Governor that a death sentencebe commuted to life imprisonment, and the Governor,pursuant to such recommendation, can commute the sentencewithout consent of the convict. Neither do we find in our laws any requirementthat the Board of Pardons and Paroles conduct a hearing before it recommendscommutation nor before commutationis given. SUMMARY --w-e-- The questions regardinga specific case presently in litigationare unanswered. **However,** the Board of Pardons and Paroles generallycan

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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 insofaras it imposes the death penalty and remands the case **to** the Texas Court for furtherproceedings in conformitywith its judgment,so long as the Texas Court has taken no final action in the case. n R{$ectfully submitted,

B 7 ' G!vF RDC.RARTI ey General of Texas Preparedby W. Barton Bolinq AssistantAttorney 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 ExecutiveAssistant
**NOLA** WRITE First Aaaistant

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