The opinion
August 1, 1972
Hon. Clyde Whiteside
Chairman
Board of Pardons and Paroles Opinion No. M-1187
Room 501 John H. Reagan Bldg.
Austin, Texas 78701 Re: Effect of Furman v.
Georgia holding death
penalty unconstitutional,
Dear Sirs: and related questions.
This is in response to your recent inquiry concerning appli-
cation of the recent U. S. Supreme Court decisions in Furman v.
Jackson v. Georgia (69-5030) and Branch v.
40 W 4923, to procedures b efore
theexas Board rP&%nxAd Pa:&. We quote your entire
letter (less formal parts):
"The Texas Board of Pardons and Paroles respectfully
requests your opinion concerning matters of commutation
of sentence, as provided in Article 4, Section 11 of
the Texas Constitution and other Texas laws. In view
of the recent United States Supreme court opinions
concerning the death penalty in William Henry Furman
VS. State of Georgia, et. al., and being cases numbers
69-5003, 69-5030 and 69-5031.
"It is the established policy of the Texas Board of
Pardons and Paroles when considering commutation of
sentences from death to life imprisonment that the
sentencing trial court officials instigate application
for such commutation by written request to the Board
setting out its reason for seeking such commutation
and requesting the Board to make such recommendation
to the Governor for his action. This Board does not
solicit commutation application nor has it to my know-
ledge ever initiated commutation without the request
of the trial officials or the convicted defendant.
This is the established procedure followed by this and
prior Boards in such cases. In view of the ruling of
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Hon. Clyde Whiteside, Page 2 (M-1187)
the Supreme Court in the Furman case, and other cases
numbered above, we would like to have a leqal opinion
upon the following questionsn
"1. Did the ruling in Furman vsO Georgia, 869-5003,
69-5030, and 69-3031 et. al., declare the death
penalty unconstitutional, per se?
"2. What is the present posture of death penalties
assessed in Texas District Courts in the following
catagories:
(a) Awaiting,motion for new trial in Texas
District Courts,
(b) Awaiting appeal to Texas Court of Criminal
Appeals.
(cl Affirmed by the Texas Court of Criminal
Appeals and awaiting certiorari to the
Supreme Court of the United States.
(d) Penalties provided declared unconstitu-
tional by the Supreme Court of the United
States.
(e) Habeas Corpus proceedings pending under
Article 11,07 Texas Code of Criminal Pro-
cedure,
(f) Habeas Corpus pending in various federal
courts,
"3. In view of the Board's policy outlined above, may this
Board now act with regard to the above catagories of
cases to recommend commutation to the Governor?
"4. In the event of commutation of the death penalty to life
imprisonment, does this Board have any responsibility
for causing the individual to be re-sentenced?
"5, What effect upon the action of this Board will result
when a condemned person informs the Board in writing
that he does not wish to receive commutation from death
to life?"
The decision of the UC S, Supreme Court in the three cited
cases (combined) :s a short per curiam decision which, with
formal parts omitted, holds:
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,,’ . I
Hon o Clyde Whiteside, Page 3 (M-1187)
"Certiorari was granted limited to the following
question: 'Does the imposition and carrying out
. ..
of the death penalty in [these casesj constitute
cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments?' 403 U.S. 952
(1971). The Court holds that the imposition and
carrying out of the death penalty in these
cases constitutes cruel and unusuarpunishment
molation of the Eighth and Fourteenth Amend-
ments. The judgment in each case is therefore
reversed insofar as it leaves undisturbed the
death sentence imposed, and the cases are
remanded for further proceedings."E-asis
added) D -
Then there follow nine opinions (five separate concurrences and
four joint and separate dissents).
We must point out the fact that at the time of the issu-
ante of this opinion the -mandate
_ of the United . States
..~. . Supreme
.
Court has not been issued and petitions for rehearing have been
filed in all three of the cases (as well as all other Texas
death penalty cases acted upon by that Court). We do not pre-
dict what the action of the Court upon these motions will be.
We can only provide you with our current understanding of these
decisions, The following discussion must be accepted in this
light,
After careful study of the order and the nine opinions, we
conclude that the death penalty, pe+ se, has not been declared
constitutionally impermissible, T e entire thrust of the com-
bined cases is to declare Texas (and other) procedures are
violative of "procedural due process" only as to the imposition
of death as a punishment for crime in the manner and under the
circumstances submitted.
In our opinion, these decisions make all current Texas death
sentences subject to successful attack in proper proceedings in
appropriate courts and prohibits the assessment of death in
current cases under present Texas statutes.
II,
You have advised this office that your inquiry with regard
to "posture" includes not only presently but also with regard
to posture in the event the death penalty should be commuted
to life imprisonment,
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Hon. Clyde Whiteside, Page 4 (M-1187)
In Attorney General's Opinion M-981 (1971), this office ad-
vised that your board "generally can recommend and the Governor,
based on such recommendation, can commute a death sentence to life
imprisonment even though the conviction is on appeal and has not
been finally determined by the Texas Courts. The Board and
Governor may do the same even though the United States Supreme
Court may reverse a judgment insofar as it imposes the death
penalty and remands the case to the Texas Court for further pro-
ceedings in conformity with its judgment, so long as the Texas
Court has taken no final action in the case,"
We further advised you that your board "can recommend to the
Governor that a death sentence be commuted to life imprisonment,
and the Governorp pursuant to such recommendation, can commute the
sentence without consent of the convict, Neither do we find in
our laws any requirement that the Board of Pardons and Paroles
conduct a hearing before it recommends commutation nor before
commutation is given,"
This conclusion is supported by the recent decision of the
Court of Criminal Appeals in the case of Whan v. Texas, S.W.
2d (not yet reported but being Cause No. 41 789 on tKdocket
of nt court) delivered June 28, 1972. That oiinion holds that
the Governor may commute a death sentence to life even after the
U, S, Supreme Court has declared the death penalty invalid or at
any time after a verdict of guilty has been returned and the jury
has fixed the penalty (but of course before a new trial has been
granted by a court of competent authority) (I The opinion also
noted that commutation does not affect the judgment but merely
mitigates the punishment,
With such introductory statements, we will now analyze the
categories submitted,
(a)
Where a death penalty conviction is pending motion for new
trial in the District Court, the penalty may be commuted and the
motion for new trial will be heard and disposed of on the merits
asserted as if life imprisonment had been the original penalty
imposed,
(b)
Where appellate review is pending in the Court of Criminal
Appeals, the penalty may be commuted and the appeal may proceed.
.-_
‘l;
-5792~
. I
Hon. Clyde Whiteside, Page 5 (M-1187)
We express no opinion on whether or not the Court of Criminal
Appeals might return the cause to the District Court for further
proceedings (such as sentencing, supplementary~briefs, etc.) or
treat death penalty questions as surplusage, etc,, as that Court
has not yet had an opportunity to act to provide guidelines in
such matters and the Code of Criminal Procedure appears not to
contemplate such a possibility.
(c)
Where certiorari is pending, the penalty may be commuted,
thereby rendering death penalty questions moot (although other
issues would remain unchanged).
(d)
Where the U. S, Supreme Court has granted death penalty re-
lief and remanded the cause to the Court of Criminal Appeals
(but where the Court of Criminal Appeals has not yet acted to
grant a new trial), the penalty may be commuted and the Court
of Criminal Appeals will re-affirm its judgment (this is the
precise posture found in Whan v. State, supra).
(4
Where habeas corpus proceedings are pending in Texas courts
under Article 11,07, Texas Code of Criminal Procedure, commuta-
tion may be granted, thereby rendering moot any death penalty
questions.
Where Federal habeas corpus proceedings are pending, commu-
tation may be granted and it would then be incumbent upon counsel
for the State to call this to the attention of the Federal Court
for its consideration upon the issue of mootness.
It is our opinion that in all of the above categories, ab-
sent commutation, the court concerned must either grant a new
trial (or in habeas corpus, order the release of the prisoner
if a new trial is not granted) 0
III,
In view of the decision in Whan v. State, supra, it is our
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‘ .
Hon. Clyde Whiteside, Page 6 (M-1187)
opinion that the Board of Pardons and Paroles may now act with
regard to recommending commutations in all cases in all cate-
gories o And since we find no prohibition to prevent the Board
from acting sua fponte, we certainly find no prohibition against
the Board requiring some initiative from either the State or the
condemned person before consideration will be given to a recom-
mendation. It is obviously within the inherent rule making power
of the Board to establish orderly procedures for the disposition
of matters within its jurisdiction.
We find no statutory burden upon the Board to concern
itself with the sentencing or resentencing of persons com-
muted. This would be a matter entirely for the judiciary.
V.
In regard to the effect of notice from the condemned man
that he opposes commutation, we quote again (as in A. G. Opinion
#M-981) from the Court of Criminal Appeals decision in Ex Parte
LeFors, 303 S,W,Zd 394 (Tex.Crim. 1957) at p* 397:
"Commutation of sentence means the change of
the punishment assessed to a less severe one. It
differs from a pardon in that it may be imposed
without consent of the convict or against his will."
(Emphasis added,)
Since the people of Texas have an interest in conserving judicial
time and the immense cost of retrials, counsel for the State
may properly petition for commutation to avoid such wasteful
duplicity. It is our opinion that such a request from a con-
demned man should be considered by the Board along with all other
factors but such request in no way prevents the Board from exer-
cising its lawful discretion in making or withholding a recom-
mendation to the Governor,
This question was disposed in Biddle v0 Perovich, 274 U,S,
480 (U.S,S.Ct,s 1927) p wherein Mr. Justice Holmes stated for
a unanimous court:
-Both s,ides agree that the act of the
President was properly styled a commutation
of sentence, but the counsel of Perovich
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Hon. Clyde Whiteside, Page 7 (M-1187)
urge that when the attempt is to commute a
punishment to one of a different sort it
za:nzt be done without the convict's consent."
*We will not go into history, but we will
say a word about the principles of pardons in
the law of the United States. A pardon in our
days is not a private act of grace from an
individual happening to possess power. It is
a part of the Constitutional scheme. When
granted it is the determination of the ulti-
mate authority that the public welfare will
be better served by inflicting less than what
' .the judgment fixed." l l l
"When we come to the commutation of death
to imprisonment for life it is hard to see
how consent has any more to do with it than it
has in the cases first put. Supposing that
Perovich did not accept the change, he could
not have got himself hanged against the Execu-
tive order, Supposing that he did accept, he
could not affect the judgment to be carried
out, The considerations that led to the
modification had nothing to do with his will.
The only question is whether the substituted
punishment was authorized by law--. O On * l l
"We cannot doubt that the power extends
to this case, By common understanding impris-
onment for life is a less penalty than death.
It is treated so in the statute under which
Perovich was tried,"* l *
SUMMARY
1, The U, SO Supreme Court has not held the death
penalty unconstitutional, E se, but has declared Texas
procedure in the assessment of%eath unconstitutional.
2, Present death penalties at any stage between
jury verdict and granting of a new trial may be commuted
to life,
3, The Board of Pardons and Paroles may now act to
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Hon. Clyde Whiteside, Page 8 (M-1187)
recommend commutation upon application from officials of
the convicting court.
4. The Board has no obligation to go forward in
causing convicting courts to re-sentence (under nunc
pro tune) those commuted,
5. The Board may recommend (and the Governor may
grant) commutation over a protest from the condemned
person.
Res&tfully submitted,
General of Texas
Prepared by Howard M. Fender
Assistant Attorney General
APPROVEDr
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max P. Flusche
Lang A. Baker
Robert L. Lattimore
Gordon Cass
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WwI'E
First Assistant
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