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 aboutthepowerofthe Governorto grantposthumouspardons andrelated questions regarding the binding authority ofattorney general opinions, the legal procedures for challenging a pardon, and the authority ofthe Board ofPardons and Paroles (the "Board,,).l Based on a previous attorney general opinion,youtell us the Governorbelievesthathe cannot grant aposthumouspardon 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 ofthe Board ofPardons 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 Pursuantto thisprovision, Texas courtshave statedthat "[t]heConstitution of this state granting [the pardon] power to the Governor, it is for him alone to exercise without restraint or restriction from any source, otherthanthe 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).

2Article 48.01 ofthe Code ofCriminal Procedure mirrors the language in article IV, section 11(b) ofthe Texas Constitution: "In all criminal cases, excepttreason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice ofthe Board ofPardons and Paroles, or a majority thereof, to grant reprieves and commutations ofpunishment and pardons

...." TEX. CODE CRIM. PROe. ANN. art. 48.01 (Vernon 2006).The Honorable Rodney Ellis

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Under this constitutional provision, the Governor's power is limited by requiring prior recommendation ofthe 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). Wheninterpretingthe Texas Constitution, wepresumeitslanguage was carefully selected, construe its words as they are generallyunderstood, and "relyheavily ontheplainlanguage ofthe Constitution's literal text." Spradlin 

### v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000). The plain language ofthe constitutiondoes not expressly address whetherthe Governormay issueposthumouspardons. However, becausethe constitutionhasgiventhe Governorpardonpower in all criminal cases except treason and impeachment and has not otherwise limited his authority to grantposthumouspardons, itcouldbe interpreted as implicitly authorizinghimto grantposthumous pardons in criminal cases, so long as all constitutional requirements are met. See TEx. CONST. art. IV,§ll. Furthermore, the modem development ofUnited States Supreme Court precedent supports the Governor's authorityto issueposthumouspardons. Asyourecognize, AttorneyGeneral Opinion C-471, issued in 1965, concluded otherwise. Although no Texas cases had addressed the authority ofthe Governorto grantposthumouspardons, that opinionconcludedthatbecausethe deceasedwas unable to acceptthe pardon, the Governor didnothave authorityto grantit. Tex. Att'y Gen. Op. No. C-471 (1965) at 1. The case lawonwhichthatopinionrelied didnotaddress the Governor's pardon authority but instead addressed the common-lawrequirement 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 ofwhich, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and ifit 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 thatthe power ofthe Governor, "underthe State Constitution, to pardon offenses, is of the same general nature as that conferred upon the President ofthe United States." See Hunnicutt, 18 Tex. Ct. App. at 517,520. However, the United States Supreme Courthas since recognized that ''the requirement ofconsent [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 ofthe grantee, that should be the basis for issuing a pardon:
When granted [a pardon] is the determination of the ultimate authoritythatthepublicwelfare willbebetter servedbyinflictingless than whatthejudgmentfixed. Just as the original punishmentwould 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

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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., Exparte Davenport, 7 S.W.2d 589,591 (Tex. Crim. App. 1927) ("It is essential to the validity ofa conditional pardon that it be accepted by the person in whose favor it is issued."); Exparte 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 whenconditions are placed onthepardonedrecipient, there does notappearto be a need for acceptance ifno such conditions are present, such as in the instance ofa posthumous pardon. 3 See Wilson, 32 U.S. at 161 ("A pardon may be conditional; and the condition may be more objectionable thanthe punishment inflictedbythejudgment."); see also Biddle, 274 U.S. at486-87 ("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 ofthe prior Texas decisions, 

### it is possible that, were a Texas court to decide the issue today, it would reject the need for acceptance ofan 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 ofthe 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 ifcertain conditions are met. TEx. CIY. PRAC. & REM. CODE ANN. 

### § 103.001(a), (c) (Vernon Supp. 2009). Thus, given no express limitation in the constitutionfor aposthumouspardon,the shiftinUnited States Supreme Courtprecedent awayfrom 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 didnothave authorityto issue a posthumous pardonwas "legallybinding onthe 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 oftenuse themfor guidance on specific legal issues, especiallywhenthere 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 casethat addresses the authority ofthe Governorto grant a posthumous pardon. Based onthe common-lawacceptance doctrine, AttorneyGeneral OpinionC-471 advisedthat"the Governor [has] nopowerto grant a posthumous full pardonto a deceased convicted felon." Tex. Att'yGen. Op. No. C-471 (1965) at 2. However, in the forty-five years since opinion C-471 was issued, the

JPresumably rejecting the ideathat acceptance is required for anunconditional pardonto be valid, at least nine states, eitherthrough their governors ortheirboards of pardons and paroles, haverecently grantedposthumous pardons. See Darryl W. Jackson, et al., Bending TowardJustice: The Posthumous Pardon of LieutenantHenry Ossian Flipper, 74 IND. L.J. 1251, 1277 (1999). Two Presidents ofthe 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

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understanding ofthe 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 ofsentence'

... may be imposed without consent ofthe convict"). To the extent that the Governor was previously advised that he was prohibited from issuing a posthumous pardon, itwas reasonable for himto 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 matterjurisdiction to cases involving a distinct injury to the plaintiff and 'a real controversy between the parties, which

.... will be actually determined by thejudicial 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)). 

### InBrown v. Todd, the Texas Supreme Court reviewed a city council member's standing to challenge an executive order issued bythe mayor. Id. at 299. 

### Indoing so, it adopted a federal standing requirement, demanding that '" [a] plaintiffmust 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 establishthathe has a 'personal stake' inthe alleged dispute" andthatthe injury sufferedis "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 issuedbythe Governor. However, itis instructive that a federal district courtdismissed a plaintiffs challenge to the President's issuance ofa pardonbecause the plaintiffdidnot 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 offirst 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 ofan 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 beenunable to find a Texas case inwhichthe 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 ofan act of the Governor so long as he operates within the law in exercising his own discretion and judgmentintheperformance ofhis constitutional duties." Ex partePitt, 206 S.W.2d 596,596 (Tex. Crim. App. 1947); see Exparte 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 areThe Honorable Rodney Ellis

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not part of the

... adjudicatory process. . .. They are conducted by the executive branch, independent ofdirect appeal and collateral reliefproceedings."). Given the lack ofprecedent 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 ofPardons 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 personbeing consideredbythe 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'spower, the Texas Constitution gives the Boardthe powerto 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 ofthe current trial officials of the court of conviction, with one trial official submitting documentary evidence ofactual innocence; or (2) a certified order or judgmentofa courthavingjurisdiction 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 ofactual innocence.
37 

### TEx. ADMIN. CODE 

### § I43.2(a) (2009) (Tex. Bd. ofPardons and Paroles, Pardons for Innocence). We find no authority otherwise limiting who the Boardmayrecommend 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

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### SUMMARY
TheTexas Constitutiondoes notexpresslyaddress orlimitthe 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 ofthat opinion and the underlying Texas authorities. Given this shift in Supreme Court precedent and the Legislature's apparentrecognition of this shift, webelieve 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. Whilethey arepersuasive 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 generallyrefuse to review the Governor's exercise ofthe pardon power so long as he operates within the constitutional restraints ofthat 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