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Dr. George J. Beto Director Opinion No. MT97 Texas Department of Corrections Huntevllle, Texas Re: Whether the Department of Corrections maylegally require the return of Robert SamuelFrank to serve the remainder of his sentence. Dear Dr. Beto: Youhave requested an opinion of this office on the following facts:

Inmate’Robert SamuelFranks.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### #x26098,whose parole was revoked onSeptember 16, 1963, under Proclamation No ’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 NewJersey, and is refusing extradition to Texas on the grounds that he does not owethis State any remaining time on his original conviction.

‘The Inmate was originally received In the TexasDe; partment of Corrections from Potter County on May2, 1953, to serve a lo-year sentence for the offense of robbery. Sentence to begin on December 2, 1952. After having been credited with 

### 5years, 7months and 22 days on his original sentence, the Inmate, on June 

### 7, 1956, wasgranted an out-ofstate conditional pardon to the State of NewJersey by Proclamation No. 

### 56-0860.

HyProclamation No. 

### 584210, dated February 

### 7, 1958, the Governor revoked Proclamation No. 

### 56-0860for violation of the conditions of parole.

ByProclamation No, 61-3720, dated November 9, 

### 1961, the Governor granted another conditional pardon to NewJersey

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

. . . . (Hmphasis supplied).

- 440-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 sameto be null and void and of no force and effect.

ByProclamation No. 62-3776, dated November 

### 16, 1962; thenGovernor 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 conditionals pardon’ to Neti Jersey, granted him”on November 9, 1961, under Proclamation No. 61-3720, which was revoked’on April 16, 1962; underProclamation No. 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.

. ByProclamation 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. Bythe terms of Proclamation No, 

### 61-3720,dated November 9, 1961, Rob~ertSamuelFrank was denied credit for time served on prior conditional pardon dated June 7, 

### 1956 (No.56-0860). OnJune 

### 7,1956,whenhe was granted his first out-of-state conditional pardon, he had been credited with 5years, 7months and 22 days on his original sentence. Underthe terms of Proclamation No. 61-3720, he was not credited,for the time served from June 7, 1956 to November9, 1961, a total of 5years, 

### 5months and 2 days. Although the Proclamation No. 

### 62-1115revoked Proclamation No. 

### 61-3720andheld sameto be null and void, nevertheless, Proclamation No. 

### 62-3776reinstated Proclamation No. 

### 61- 3720 fully, thereby denying the Inmate credit for time served on parole between June 7, 1956 andNovember9, 

### 1961. The Governor has the right to issue conditional pardons and extending themon such conditions as deemedby him to be advisable, andwhensuch 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, andthe prisoner is not entitled to credit on his sentence for the time he is at large. ExParte Bryant, Crlm. 1950). 

### 230S.w.2d 

### 824 (Tex.

Each of the proclamations of the Governor granting a conditional pardon were conditioned as follows:

- 441-Dr. George J. Beto, Page,

### 3 (M-97,)

If, however, he is guilty at any time'of anymisconduct or violation of the law or fails to comply in anywaywith the terms hereof or for any other reason the Governor'may deem~suffjcient (including any facts not knownto 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 maydetermine, andupon 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 himor so muchthereof as hadnot been served by the Subject at the time of his release under the terms of this or any previous clemency andthe 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 hewould 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 SamuelFrank must serve the remaining 4years, 4months 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 ExParte 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, andthereafter 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

- 442-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 maylegally 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: OPINIONCOMMITTEE Hawthorne Phillips, Chairman W.V. Geppert, Co-Chairman Robert E. Owen SamKelley Pat Bailey Harold Kennedy
A. J. Carubbi, Jr. Staff Legal Assistant

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