ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

January 7, 2010 

The Honorable Rodney Ellis 

Chair, Committee on Government Organization 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 78711-2068 

Dear Senator Ellis: 

Opinion No. GA-0754 

Re: Authority of the Governor to grant a 

posthumous pardon (RQ-0810-GA) 

You ask about the power of the Governor to grant posthumous pardons and related questions 

regarding the binding authority of attorney general opinions, the legal procedures for challenging a 

pardon, and the authority of the Board of Pardons and Paroles (the "Board,,).l Based on a previous 

attorney general opinion, you tell us the Governor believes that he cannot grant a posthumous pardon 

without a constitutional amendment. Request Letter at 1-2. You therefore ask about his authority 

to do so. 

The Texas Constitution authorizes the Governor to issue pardons in specific circumstances: 

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 .... 

TEx. CONST. art. IV, § II(b); see also TEx. CODE CRIM. PROC. ANN. art. 48.01 (Vernon 2006).2 

Pursuant to this provision, Texas courts have stated that "[t]he Constitution of this state granting [the 

pardon] power to the Governor, it is for him alone to exercise without restraint or restriction from 

any source, other than the sovereigns of the state who wrote and adopted the Constitution." Ex parte 

Rice, 162 S.W. 891,900 (Tex. Crim. App. 1913). 

lRequest Letter at 4 (available at http://www.texasattorneygeneral.gov). 

2 Article 48.01 of the Code of Criminal Procedure mirrors the language in article IV, section 11(b) of the Texas 

Constitution: "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 .... " TEX. CODE CRIM. PROe. ANN. art. 48.01 (Vernon 2006). 
The Honorable Rodney Ellis - Page 2 (GA-0754) 

Under this constitutional provision, the Governor's power is limited by requiring prior 

recommendation of the Board; however, he is otherwise entitled to grant pardons after a conviction 

in "all criminal cases, except treason and impeachment." TEx. CONST. art. IV, § 11(b) (emphasis 

added); see State ex rei. Smith v. Blackwell, 500 S.W.2d 97,100 (Tex. Crim. App. 1973) (discussing 

the 1936 constitutional amendment that requires the Governor to act only upon the Board's 

recommendation). When interpreting the Texas Constitution, we presume its language was carefully 

selected, construe its words as they are generally understood, and "rely heavily on the plain language 

of the Constitution's literal text." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 

2000). The plain language of the constitution does not expressly address whether the Governor may 

issue posthumous pardons. However, because the constitution has given the Governor pardon power 

in all criminal cases except treason and impeachment and has not otherwise limited his authority to 

grant posthumous pardons, it could be interpreted as implicitly authorizing him to grant posthumous 

pardons in criminal cases, so long as all constitutional requirements are met. See TEx. CONST. art. 

IV,§ll. 

Furthermore, the modem development of United States Supreme Court precedent supports 

the Governor's authority to issue posthumous pardons. As you recognize, Attorney General Opinion 

C-4 71, issued in 1965, concluded otherwise. Although no Texas cases had addressed the authority 

of the Governor to grant posthumous pardons, that opinion concluded that because the deceased was 

unable to accept the pardon, the Governor did not have authority to grant it. Tex. Att'y Gen. Op. No. 

C-471 (1965) at 1. The case law on which that opinion relied did not address the Governor's pardon 

authority but instead addressed the common-law requirement that a pardon be accepted in order to 

be valid. See, e.g., Hunnicutt v. State, 18 Tex. Ct. App. 498, 517, 520, 1885 WL 6857 (Tex. Ct. 

App. 1885). This acceptance requirement stemmed from early United States Supreme Court 

common law stating that "[a] pardon is a deed, to the validity of which, delivery is essential, and 

delivery is not complete, without acceptance. It may then be rejected by the person to whom it is 

tendered; and if it be rejected, we have discovered no power in a court to force it on him." United 

States v. Wilson, 32 U.S. 150,161 (1833). Texas courts thereafter adopted the acceptance doctrine, 

recognizing that the power of the Governor, "under the State Constitution, to pardon offenses, is of 

the same general nature as that conferred upon the President of the United States." See Hunnicutt, 

18 Tex. Ct. App. at 517,520. However, the United States Supreme Court has since recognized that 

''the requirement of consent [to a pardon] was a legal fiction at best" and has generally abandoned 

the acceptance doctrine since adopting it in 1833. Schick v. Reed, 419 U.S. 256, 261 (1974). In 

doing so, it has recognized that it is the public welfare, not the consent of the grantee, that should 

be the basis for issuing a pardon: 

When granted [a pardon] is the determination of the ultimate 

authority that the public welfare will be better served by inflicting less 

than what the judgment fixed. Just as the original punishment would 

be imposed without regard to the prisoner's consent and in the teeth 

of his will, whether he liked it or not, the public welfare, not his 

consent determines what shall be done. 

Biddle v. Perovich, 274 U.S. 480,486 (1927) (citation omitted). 
The Honorable Rodney Ellis - Page 3 (GA-0754) 

No Texas court has expressly rejected the idea that acceptance is necessary in order for a 

pardon to be valid; however, the Texas cases have generally applied the acceptance requirement to 

situations involving conditional pardons. See, e.g., Ex parte Davenport, 7 S.W.2d 589,591 (Tex. 

Crim. App. 1927) ("It is essential to the validity of a conditional pardon that it be accepted by the 

person in whose favor it is issued."); Ex parte Frazier, 239 S.W. 972, 973 (Tex. Crim. App. 1922) 

(upholding Governor's revocation of a conditional pardon). While there may exist a need for 

acceptance when conditions are placed on the pardoned recipient, there does not appear to be a need 

for acceptance if no such conditions are present, such as in the instance of a posthumous pardon.3 

See Wilson, 32 U.S. at 161 ("A pardon may be conditional; and the condition may be more 

objectionable than the punishment inflicted by the judgment. "); see also Biddle, 274 U. S. at 486-87 

("So far as a pardon legitimately cuts down a penalty, ... the convict's consent is not required."). 

Given the shift in United States Supreme Court precedent that formed the basis of the prior Texas 

decisions, it is possible that, were a Texas court to decide the issue today, it would reject the need 

for acceptance of an unconditional pardon as the United States Supreme Court has done. 

It is also worth noting that legislation recently enacted by the Texas Legislature appears to 

recognize the shift in United States Supreme Court precedent. Amendments made to section 

103.001 of the Texas Civil Practice and Remedies Code during the eighty-first legislative session 

allow deceased persons, "including a person who received a posthumous pardon," to receive 

compensation for wrongful imprisonment if certain conditions are met. TEx. CIY. PRAC. & REM. 

CODE ANN. § 103.001(a), (c) (Vernon Supp. 2009). Thus, given no express limitation in the 

constitution for a posthumous pardon, the shift in United States Supreme Court precedent away from 

the acceptance doctrine, and the recent legislative changes recognizing the Governor's authority to 

grant a posthumous pardon, we believe a court would likely conclude that the Governor may grant 

such a pardon without a constitutional amendment, assuming all other constitutional requirements 

are met. In doing so, it would overrule Attorney General Opinion C-471. 

Your second question asks whether the prior attorney general opinion concluding that the 

Governor did not have authority to issue a posthumous pardon was "legally binding on the governor 

on this issue." Request Letter at 4. While they are persuasive authority, attorney general opinions 

are not binding. Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996). However, both courts and 

state officials often use them for guidance on specific legal issues, especially when there is otherwise 

limited authority addressing an issue. S. Tex. Coli. of Law v. Tex. Higher Educ. Coordinating Bd, 

40 S.W.3d 130, 137 n.l (Tex. App.-Austin 2000, pet. denied). As discussed above, we find no 

Texas case that addresses the authority of the Governor to grant a posthumous pardon. Based on the 

common-law acceptance doctrine, Attorney General Opinion C-471 advised that "the Governor [has] 

no power to grant a posthumous full pardon to a deceased convicted felon." Tex. Att'y Gen. Op. No. 

C-471 (1965) at 2. However, in the forty-five years since opinion C-471 was issued, the 

JPresumably rejecting the idea that acceptance is required for an unconditional pardon to be valid, at least nine 

states, either through their governors or their boards of pardons and paroles, have recently granted posthumous pardons. 

See Darryl W. Jackson, et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 

74 IND. L.J. 1251, 1277 (1999). Two Presidents of the United States have likewise granted posthumous pardons. Id.; 

Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush, N.Y. TIMEs, Dec. 24, 2008, available at 

http://www.nytimes.coml2008/12/24/washingtonl24pardons.html (last visited Jan. 6,2010). 
The Honorable Rodney Ellis - Page 4 (GA-0754) 

understanding of the acceptance doctrine has changed. See Schick, 419 U.S. at 261 ("requirement 

of consent was a legal fiction at best"); cf Cherry v. State, 361 F. Supp. 1284, 1288 (N.D. Tex. 

1973) ('''commutation of sentence' ... may be imposed without consent of the convict"). To the 

extent that the Governor was previously advised that he was prohibited from issuing a posthumous 

pardon, it was reasonable for him to rely on such advice. See Weaver v. Head, 984 S.W.2d 744, 746 

(Tex. App.-Texarkana 1999, no pet.) (indicating that public officials sometimes show they acted 

in good faith by relying on an attorney general opinion). 

Your third question asks about who has standing, and on what grounds, to challenge the 

Governor's pardon and what procedure would be used to do so. Request Letter at 4. Under Texas 

law, "standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff 

and 'a real controversy between the parties, which .... will be actually determined by the judicial 

declaration sought.'" Brown v. Todd, 53 S.W.3d 297,305 (Tex. 2001) (quoting Texas Workers' 

Compensation Comm 'n v. Garcia, 893 S. W.2d 504, 517-18 (Tex. 1995)). In Brown v. Todd, the 

Texas Supreme Court reviewed a city council member's standing to challenge an executive order 

issued by the mayor. Id. at 299. In doing so, it adopted a federal standing requirement, demanding 

that '" [ a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful 

conduct and likely to be redressed by the requested relief.'" Id at 305 (quoting Raines v. Byrd, 521 

U. S. 811, 818-19 (1997)). Finding the city council memberlacked standing, the court emphasized 

that the United States Supreme Court has "consistently stressed that a plaintiffs complaint must 

establish that he has a 'personal stake' in the alleged dispute" and that the injury suffered is "concrete 

and particularized." Id. (quoting Raines, 521 U.S. at 819). 

We have found no Texas case that specifically addresses standing to challenge a pardon 

issued by the Governor. However, it is instructive that a federal district court dismissed a plaintiff s 

challenge to the President's issuance of a pardon because the plaintiff did not allege concrete injury 

to himself. McCordv. Ford, 398 F. Supp. 750, 754-55 (D.D.C. 1975); see also Brown, 53 S.W.3d 

at 305 (adopting a federal standing requirement requiring, among other things, that the plaintiff 

establish concrete injury and stating that the court may look to federal standing requirements when 

considering an issue of first impression). We cannot predict in the abstract all circumstances that 

may create standing to challenge the Governor's issuance of a pardon. However, a party would 

likely lack standing to challenge the Governor's pardon unless the challenging party can prove a 

personal and concrete injury fairly traceable to the Governor's granting of an unlawful pardon and 

likely to be redressed by the requested relief. 

What procedure would be used to challenge the Governor's pardon is a separate question 

from who has standing to do so. We have been unable to find a Texas case in which the Governor's 

decision to grant a pardon was successfully challenged. Furthermore, Texas courts have generally 

refused to review such decisions, explaining that they have "no power to review the wisdom of an 

act of the Governor so long as he operates within the law in exercising his own discretion and 

judgment in the performance of his constitutional duties." Ex parte Pitt, 206 S.W.2d 596,596 (Tex. 

Crim. App. 1947); see Ex parte Rice, 162 S. W. at 901 ("the right to grant pardons is conferred on 

the Governor by the Constitution, and in granting them his actions are not subject to review"); see 

also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 284 (1998) ("Clemency proceedings are 
The Honorable Rodney Ellis - Page 5 (GA-0754) 

not part of the ... adjudicatory process. . .. They are conducted by the executive branch, 

independent of direct appeal and collateral relief proceedings. "). Given the lack of precedent for a 

challenge to the Governor's issuance of a pardon and the general refusal of courts to review the 

Governor's decision, we cannot advise you as to a procedure that might be used to successfully 

challenge the Governor's pardon. 

Your final question asks whether ''the Board of Pardons and Paroles [is] constitutionally 

authorized to recommend a posthumous pardon[.]" Request Letter at 4. The constitution requires 

the Legislature to "establish a Board of Pardons and Paroles" and authorizes the Board to provide 

"written signed recommendation and advice" to the Governor regarding pardons. TEx. CONST. art. 

IV, § 11 (a)-(b). Pursuant to this provision, the Legislature requires that, "[o]n request of the 

governor, the board ... investigate a person being considered by the governor for ... pardon." TEx. 

GOV'T CODE ANN. § 508.050(a)(1) (Vernon 2004). "The board shall report to the governor on its 

investigation and make recommendations about the person to the governor." ld. § 508.050(b). 

Like the Governor's power, the Texas Constitution gives the Board the power to recommend 

pardons in all criminal cases except treason and impeachment and has not otherwise limited its 

authority to recommend posthumous pardons. See TEx. CONST. art. IV, § II(b). Under its own 

rules, 

the board will consider applications for recommendation to the 

governor for a pardon for innocence upon receipt of: 

(1) a written recommendation of at least two of the current 

trial officials of the court of conviction, with one trial official 

submitting documentary evidence of actual innocence; or 

(2) a certified order or judgment of a court having jurisdiction 

accompanied by a certified copy of the findings of fact and 

conclusions of law where the court recommends that the Court of 

Criminal Appeals grant state habeas relief on the grounds of actual 

innocence. 

37 TEx. ADMIN. CODE § I43.2(a) (2009) (Tex. Bd. of Pardons and Paroles, Pardons for Innocence). 

We find no authority otherwise limiting who the Board may recommend for a pardon. We therefore 

believe a court would likely conclude that the Board is authorized to recommend that the Governor 

grant a posthumous pardon. 
The Honorable Rodney Ellis - Page 6 (GA-0754) 

SUMMARY 

The Texas Constitution does not expressly address or limit the 

Governor's authority to grant a posthumous pardon. While a prior 

attorney general opinion concluded he could not grant a posthumous 

pardon due to the recipient's inability to accept it, modem United 

States Supreme Court decisions reject the common-law acceptance 

requirement that formed the basis of that opinion and the underlying 

Texas authorities. Given this shift in Supreme Court precedent and 

the Legislature's apparent recognition of this shift, we believe a Texas 

court would likely conclude that the Governor may grant a 

posthumous pardon under current Texas law, so long as all other 

constitutional requirements are met. 

While they are persuasive authority, attorney general opinions 

are not binding; however, to the extent that the Governor was 

previously advised in an attorney general opinion that Texas law 

prohibited him from issuing a posthumous pardon, it was reasonable 

for him to rely on such advice. 

Only those able to prove a concrete injury that can be 

redressed by the courts will have standing to challenge the 

Governor's decision to grant a pardon. Texas courts generally refuse 

to review the Governor's exercise of the pardon power so long as he 

operates within the constitutional restraints of that power. 

We believe a court would likely conclude that the Board of 

Pardons and Paroles is authorized to recommend that the Governor 

grant a posthumous pardon. 

ANDREW WEBER 

First Assistant Attorney General 

JONATHAN K. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Virginia K. Hoelscher 

Assistant Attorney General, Opinion Committee