holding that a statute reducing the sentences for marijuana offenses resulted in “commutation” and, therefore, violated the Texas Constitution, which “plac[ed] the power of clemency in the hands of the Governor, acting upon the recommendation of the Board of Pardons and Paroles.”
How later courts described this case
- holding that a statute reducing the sentences for marijuana offenses resulted in “commutation” and, therefore, violated the Texas Constitution, which “plac[ed] the power of clemency in the hands of the Governor, acting upon the recommendation of the Board of Pardons and Paroles.”
- striking down another provision in the Texas Controlled Substances Act, which would have allowed a defendant to petition the court for a reduction in sentence after conviction, “whether he is presently serving a sentence, is on probation or parole, or has been discharged from the sentence,” concluding that provision functioned as a “commutation” of the defendant’s sentence, thereby violating the separation of powers provision
- similarly holding that the retroactive application of changes in sentencing laws for drug offenders “extends commutation to those previously convicted of certain offenses as a mere gift or a matter of clemency upon a filing of a resentencing petition”
- invalidating statute that allowed defendants previously convicted of a drug offense to petition the trial court for resentencing
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(concurring).
I hereby concur in the opinion, and would advance the additional reasons for so holding.
I.
CAPTION
Relator contends that Section 4.06 is ineffective because no reference to it is contained in the caption of the Act, contrary to the requirements of Art. Ill, Section 35 of the Texas Constitution. This constitutional provision requires that an act have but a single subject which shall be expressed in its title. Its purpose is to insure that the Legislature and the public receive fair notice of the contents of a bill. See Castellano v. State, 458 S.W.2d 73 (Tex.Cr.App.1970). In order to comply, the title need not be as full as the act itself, nor must it set forth the details of how the legislative purpose is to be accomplished, but it should reasonably apprise the legisla *106 tors of the contents. See San Antonio & A. P. Ry. Co. v. State, 128 Tex. 33 , 95 S.W.2d 680 (1936).
The caption of the 1973 Controlled Substances Act reads:
“An Act relating to regulation of the manufacture, distribution, possession, and use of certain drugs and controlled substances; prescribing penalties . . . repealing the Uniform Narcotic Drug Act, as amended (Article 725b, Vernon’s Texas Penal Code) . . .”
The title also lists a number of other repealed or amended statutes and declares an emergency. The only language in the caption which can be said to relate to the subject of Section 4.06 of the Act is “ . prescribing penalties . . .” and “ . . . repealing the Uniform Narcotic Drug Act . . . ”
This Court recognizes the rule that a more liberal construction should be accorded to the captions of original enactments than is applied to titles of amendatory acts. Praetorians v. State, 184 S.W.2d 299 (Tex.Civ.App. — Austin 1944 — writ dism’d.). However, such a construction will not be followed to the extent of allowing the Legislature to by-pass constitutional restrictions. Gulf Insurance v. James, 143 Tex. 424 , 185 S.W.2d 966 (1945).
The Supreme Court of Texas has applied these principles to the caption of an original enactment (Art. 2615f, § 2, V.A.C. S., 1965, Polygraph Examiner’s Act), and found the Act unconstitutional. See Fletcher v. State, 439 S.W.2d 656 (Tex.1969). In that case, the caption of the Act provided for the licensing of polygraph examiners and set up a polygraph examiner’s board. A provision of the Act, however, purported to regulate the use of all devices for verifying the truth of statements. The State argued that there was a close relationship between a polygraph and other machines known as “lie detectors” and that the term “polygraph” embraced all such devices. That Court held that the language of the title was not sufficient to give notice of the subject of the Act.
In White v. State, 440 S.W.2d 660 (Tex.Cr.App.1969), this Court dealt with an amendment to Art. 726d, V.A.P.C. (Dangerous Drug Act) which made substantial changes in the penalty provisions of the Act without containing reference thereto in the title. The Court noted that it was applying a somewhat stricter rule of construction since the subject was an amendment, but said, at p. 666:
“. . . Even the most liberal of constructions will not be enough to uphold the act . . .”
The Court also said, at footnote #8:
“No reference is made in the title to penalty though the title specifies Section 15 is to be amended. Even if the title be construed as giving fair notice that special penalties for the acts made unlawful by the amendment were being provided, such title still would not be sufficient to give fair notice to the Legislature or call to the public’s attention the former uniform penalty was being materially restricted and penalties for other offenses were being omitted altogether.”
I have concluded that the caption of Art. 725f, V.A.P.C. is inadequate to give fair notice to the Legislature or the public that Section 4.06 of the Act would allow resentencing in cases which would otherwise be final judgments under prior law. No language of the caption gives any indication that a portion of the Act is to have retroactive effect with respect to penalties. The sufficiency of the title is determined by what the title says, not by what it was intended to say. White v. State, supra. A mere reading of the caption alone, without reference to the body of the Act, discloses neither the presence of Section 4.06 nor any expression of purpose which would support its presence.
In keeping with the language of Art. Ill, Section 35, Texas Constitution, and in view of the fact that the Act contains a *107 severability clause, I would hold only that Section 4.06, of Art. 725f, V.A.P.C. (Texas Controlled Substances Act), Laws 1973, 63rd Leg., ch. 429, is unconstitutional and void.
II.
COMMUTATION
I observe, additionally, that the people of this State through the Constitution have vested the power to grant pardons and commutations solely and exclusively in the Governor, upon recommendation of the Board of Pardons and Paroles. Texas Constitution, Art. IV, Section 11; Gilderbloom v. State, 160 Tex.Cr.R. 471 , 272 S.W.2d 106 (1954); Ex parte Anderson, 149 Tex.Cr.R. 139 , 192 S.W.2d 280 (1946); Ex parte Miers, 124 Tex.Cr.R. 592 , 64 S.W.2d 778 (1933); Underwood v. State, 111 Tex.Cr.R. 124 , 12 S.W.2d 206 (1928); Ex parte Redwine, 91 Tex.Cr.R. 83 , 236 S.W. 96 (1922) ; Ex parte Rice, 72 Tex.Cr.R. 587 , 162 S.W. 891 (1914). Any attempt to exercise these powers by another branch of government would be void. Snodgrass v. State, 67 Tex.Cr.R. 615 , 150 S.W. 162 (1912).
In Gilderbloom v. State, supra, this Court defined “commutation” as the changing of the punishment assessed against a convicted defendant into a less severe penalty, and in Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972) we held that the power to grant commutation could be exercised at any time after a sentence was imposed. Thus, to the extent that any resentencing provision would operate as an attempt to enable either the Legislature or the courts to grant commutation, such a provision would be invalid as an infringement of the constitutional powers of the executive.
For the reasons stated, I would have the writ of prohibition issue.
ODOM, J., concurs with ONION, P. J., and ROBERTS, J.