. . 

Dr. George J. Beto 

Director 

Opinion No. MT97 

Texas Department of Corrections 

Huntevllle, Texas Re: Whether the Department of 

Corrections may legally 

require the return of 

Robert Samuel Frank to 

serve the remainder of 

his sentence. 

Dear Dr. Beto: 

You have requested an opinion of this office on the 

following facts: 

Inmate’Robert Samuel Franks .T.D.C!; #x26098, whose 

parole was revoked onSeptember 16, 1963, under Proclamation 

No’. 63-3379, Is currently being held by authorities in the 

State of New Jersey, and is refusing extradition to Texas on 

the grounds that he does not owe this State any remaining 

time on his original conviction. 

‘The Inmate was originally received In the TexasDe; 

partment of Corrections from Potter County on May 2, 1953, 

to serve a lo-year sentence for the offense of robbery. Sentence to begin on December 2, 1952. After having been credited with 5 years, 7 months and 22 days on his original sentence, the Inmate, on June 7, 1956, was granted an out-ofstate conditional pardon to the State of New Jersey by Proclamation No. 56-0860. 

Hy Proclamation No. 584210, dated February 7, 1958, 

the Governor revoked Proclamation No. 56-0860 for violation 

of the conditions of parole. 

By Proclamation No, 61-3720, dated November 9, 1961, 

the Governor granted another conditional pardon to New Jersey 

“with no credit for time served on prior conditional pardon, 

. . . . (Hmphasis supplied). 

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Dr. George J. Beto, Page 2 (M-97 ) 

ProclamationNo.’ 62-1115, dated April 16, 1962, revoked the conditional pardon granted by Proclamation No. 

61-3720,‘holding same to be null and void and of no force 

and effect. 

By Proclamation No. 62-3776, dated November 16, 

1962; then Governor reinstated the. conditionals pardon’ to Neti 

Jersey, granted him”on November 9, 1961, under Proclamation 

No. 61-3720, which was revoked’on April 16, 1962; underProclamation No. 62-1115, and set aside said revocation. 

. By Proclamation No. 63-3379; dated Se tember 13, 

1963, the Governor revoked Proclamation No. % l-3720 and 

ordered the Inmate be taken into custody and delivered to 

the authorities of the Texas Department of Corrections to 

serve the remainder of his sentence. 

By the terms of Proclamation No, 61-3720, dated 

November 9, 1961, Rob~ert Samuel Frank was denied credit 

for time served on prior conditional pardon dated June 7, 

1956 (No. 56-0860). On June 7, 1956, when he was granted 

his first out-of-state conditional pardon, he had been 

credited with 5 years, 7 months and 22 days on his original 

sentence. Under the terms of Proclamation No. 61-3720, he 

was not credited,for the time served from June 7, 1956 to 

November 9, 1961, a total of 5 years, 5 months and 2 days. 

Although the Proclamation No. 62-1115 revoked Proclamation 

No. 61-3720 and held same to be null and void, nevertheless, 

Proclamation No. 62-3776 reinstated Proclamation No. 61- 

3720 fully, thereby denying the Inmate credit for time 

served on parole between June 7, 1956 and November 9, 1961. 

The Governor has the right to issue conditional pardons and extending them on such conditions as deemed by him 

to be advisable, and when such clemency Is accepted by the 

prisoner, he becomes bound by such conditions, and upon 

determination by the Governor that the prisoner has failed 

to fulfill the conditions of the clemency proclamation, 

the Governor is authorized to revoke such clemency, and the 

prisoner is not entitled to credit on his sentence for the 

time he is at large. Ex Parte Bryant, 

Crlm. 1950). 

230 S.w.2d 824 (Tex. 

Each of the proclamations of the Governor granting 

a conditional pardon were conditioned as follows: 

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Dr. George J. Beto, Page, 3 (M-97,) 

If, however, he is guilty at any 

time'of any misconduct or violation of the 

law or fails to comply in any way with the 

terms hereof or for any other reason the 

Governor'may deem~suffjcient (including any 

facts not known to the Governor at the time 

of this clemency) this pardon shall be and 

is subject, to revocatfon at the Governor's 

discretion, with or without hearing, as the 

Governor may determine, and upon revocation 

by the Governor of this pardon, the same 

shall become and-,be null and void and of no 

force and effect, and the Subject shall be, 

by order of the Governor, returned to and 

confined in the Penitentiary to serve the 

sentence originally imposed upon him or so 

much thereof as had not been served by the 

Subject at the time of his release under 

the terms of this or any previous clemency 

and the time during which the Subject is at 

large under this or any previous clemency 

shall not be considered or credited to the 

Subject as time served on his original sentence." 

Also, each proclamation of the Governor, revoking the 

conditional pardon recited that he would receive no 

credit on his sentence for the time he was at large under the conditional pardon. 

Under the facts presented, it is the opinion of 

this office that Robert Samuel Frank must serve the remaining 4 years, 4 months and 8 days on his original conviction. 

The authorities attached to your letter, touching 

the right to revoke probation during the probationary 

period, have no application and are not controlling where 

the probationary period has not terminated. 

The Court of Criminal Appeals in Ex Parte Cochran, 

253 S.W.2d 443 (195~2)~ held that where a reprfeve granted 

reiator provided that; upon violation of stated conditions, 

time out of prison did not count as time served on a 25- 

year sentence, and thereafter a pardon was granted upon 

conditions of relator's previous clemency, the pardon was 

but a renewal of the original contract by the relator and 

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Dr. George J. Beto, Page 4 (M-97 ) 

the Governorand, therefore;’ time during which relator was 

at large before the pardon was revoked would not be credited 

to’time served on the sentence upon violation of the conditions of parole. 

SUMMARY 

Under the facts stated, the Governor’s 

revocation in Proclamation No.‘6313379 is 

valid a8 the probationary period had not 

ternlnated, and the Department of Corrections may legally require the return of 

Robert Saauel Frank to serve the remainder 

of his eentence. 

truly yours, 

L?J7 Lz=-- 

C. MARTIN 

General of Texas 

Prepared by Gilbert J. Pena 

A8siStant Attorney General 

GJP/dt 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

W. V. Geppert, Co-Chairman 

Robert E. Owen 

Sam Kelley 

Pat Bailey 

Harold Kennedy 

A. J. Carubbi, Jr. 

Staff Legal Assistant 

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