Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

xonorable 0. J. s. Xllingson Dear Sir:

940, ana attached i

serving a felony sentenae beneficiary of a procla- Texas on June 28, 1037, ar raprievew ana providing this proolamatlon shall not on sentence.* Thereafter on ivaa another proclamation by the Gov- e-year extansion of reprieve” ana ovision as the first mentioned groc- t that time out of prison under the nsidarcd as time served on his sentence. s ware issued upon the recommendation and advice of the aoara OS Pmdor?s and Paroles.’ In substanca, you requast our opinion es to whathar or not eSSeot shall be given to the provisions in tha proclamations that the

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tine out of prison under the proclamations should not be counted as time served, or whether such time should be con- sidered as having been served on the sentence, I.!l Seotion 11 OS Article 4 of the State C&stitu- tion, it is prOVidea that “In all criminal cases except treason and impeachment the Governor shall have pou;er after oonviction, on tha written signed recommendation and advice or the Boara of Pardons and Paroles or a majority thereof to grant reprieves and commutations or punishqsnt and par- dons; and under such rules as tha Legislature may prescribe and upon the written recoraendation and advice of a majority or the goara of Pardons and Paroles he shall have the power to remit Sines and forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty days; and he shall have the power to revoke psroles and conditional pardons.R It is true, of oourse, that the substance or the proolamations, not necessarily the names by which they were called, should govern their effect. Rx Parte Black, 123 Tex. Cr. Rep. 472. Rowaver, Qle are inclined to the opinion that the courts would hold these proclamations to be eraotly what they purport to be, that is, reprieves, Kost of the definitions OS the v:or& “reprieve” arise out of aeath penal- There was a time in Ennland when nearly every in- ~~a%%*oS the Penal laws was p&shable by death. Of cou~?se when the enforceffient of the extrems penalty is post- poned it is a postponement of tha whole sentence. However, the punishKent for crime having become more moderate and hu- mane, imprisonment having become the rule rather than the ex- ception, the granting of reprieves is not confined to,death penalty cases but may be applied to cases iniolving lesser punis.hmonts. Rx parte Dormitzer, 249 P. 639, Supreme Court of Oregon; Rx parta Black, 123 Tex. Cr. Rep. 47%. One OS the definitions of reprieve copied in Rx parte Black, ‘supra, 1s as follows: *The term reprieve . , , is, merely uoed to signify the postponement of the sentence for a time. It doos not and cannot defeat tho ultimate execution OS a judg- ment of the court; it merely delays it.” It can be very well argued that a procla:!ation postponing the execution of the unexpired part OS n sentence c-oulcl b:, a reprieve Just the same as would be tho proclamation whit!] would postpone the exeoution of the whole OS the sentence. In fact the Dor- ,mit2er oase, supra, involved just the same kind of proalama- ,

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tion as those concerned in this opinion request. The man had embarked upon the service of his santence before the reprieve was granted. From the opinion of the Suprarr;e Court of Oregon in that case, we quote: ‘;> t.:.. *The word (reprieve’.- in its general sense means : “*A tcniporary suspension of the exacution of a sentence, especially of a sentence of t;“,;h, or the order or warrant for such suspen- . I Wsbster*s International Dictionary, *‘A reprieve is the withdrawing of a sen- tenoe for an interval of ti&e whereby the axecu- tion is suspended.’ 29 Cyo. 1561. “In its restricted or technical application, the word ‘repriave’ is linited to a temporary suspension of a sentence of death. State v. Finch, 54 Gr. 412, 497, 500, I.03 p. 505; State (Clifford), v. Heller, 63 X. J. LayI, 105, 42 A. 155, 57 L. R. A. 312, 315, 317; In re Buchanan, 146 N. Y. 264, 40 N. E. 883. Tha word ‘re@evc’ has been usod in the ~opinion of oourts in its broader sense. In State (Stafford) v. Hawk, 47 M. Pa. 434, 435, 34 s. E. BIB, which was not a OapitRI case, but one in which the defendant v!as sentenced to i~prisomcnt for 12 years, the COUrt USeS this 1Kl&lS38: **The ‘power to pardon necessarily includes the po?Jar to reprieve or suspend the sentence until the matter can be inquired into and detor- mined, At comon lnw the povier to reprieve was lodged in the courts, as the representatives of the klcg, he being considered the very fountain of justice; and he was never called upon to arer- oise it excapt in capital. case3 of necessity. . Because the king was never personally iailed upon to exercise the porier of reprieve, owing to the authorlty dalegated by hia to his oourts, except in capital cases, has grown up tho theory that ho hnb no such power. . . . That he had the power to repriove or suspend sentence lo .

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any case of necessity, there oannot be the least doubt. ** Ii the proclamations were reprieves, then they fall squarely within the powers aonferred in the above seo- tlon of the Const,itution. However, we do not find it neces- sary to base our opinion solely upon that ground. If the proolamations were not reprievee teohnl- oally, the same result will be reaohed nevertheless. As said in 46 C. J. 1205, *The rule sustained by the weight of author- ity is that the power to pardon includes the power to parole.* In the same authorlty on page 1197 it is said that “it is generally held that the power to pardon necessarily contains in it the lesser power of remission and commutation,* And on page 1196 of the same volume it is aleo said that it is generally held that the power to pardon includes the power to reprieve. On page 1200 it is said that “the power to grant a pardon includes the power to grant a conditional par- don, the oondition to be either preaedent or subsequent.* It is said that the oondltion may be of any nature so long a8 it is not illegal, immoral or impossible of performanoe. The oondftion may be that the oonvloted person shall leave the State and never again return to it. 20 R. C. L. 533; 46 0. J. 1201. In the caee of Ex parte Davenport, 7 S. W. (2d) 589, our Court of Criminal Appeals held that the oon- dltion In a pardon that the convict should be immediately oommitted to and kept confined in an insane asylum was a valid oondition, the violation of whioh made the pardon aub- jeot to revocation aa provided therein. From 20 A. C. L. 503 we quoter *. . . A condition of a pardon that requires reimprisonment for the remainder of’ the original sentence of lmprisonuent, after the expiration of the particular period of time fixed~ by the Court with- ;: ;k;;i the sentence imposed should be exeauted, It cannot be eaid to be immoral, or to be impoaiible of performance during the life of the petitioner; nor can it be illegal, ainoe the particular period of time within which the sen- tence is to be suffered by the oonvict es speck- fied in the sentence is not a part of the legal sentence, exoept so far as It l’lxea the quantum of time that he must suffer such penalty, and the

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. oondit’ion imposed is not forbidden and does not Increase the punlshilent imposed by the court in Its sentence. ,’ . .”

The above quotation from Ruling Case Law is well enstained by the authorities which it cites in the f$t note. In the case of State v. Home, 7 L. R. A. (R.9;) 719, It was held that Q condltio:lal pardon may by its ex- ~press terma provide that upon violation of the conditions the offender shall be liable to summary arrest. and recom- mitment for the unexpired portion of his original sentence. Such stipulations upon aocaptsooe of the pardon beoome binding upon the oonvict and authorize his rearrest and reooAmmitmsnt in ths manner and by or through the officials authorized as stipulsted in the pardon, Frsr; ths opinion of the Supreme Court of Florida in that case ws quote: WThe condition of the pardon in this case that requires raimpri3onzent for the remainder of tha original sentence of imprisonnent, after the expiration of the yartloular period of time iirea ‘by the court within which the sentence im- posed should be executed, cannot be said to be tioral, or. to be im?ossiblo of performncc dur- ing the life of the petitioner; nor can it be il- legal, since the paAicul?r period of time within which the sentence is to be suffered by the con- vict as specified in the sentonce is not a pnrt of the legal ssntenoe,exoept so far as it fixes the quantum oftime thst he nust suffer such Den- alty, and the condition imposed is not forbidden by la;v, and does not increase the punishment im- posed by the oourt fn fts sentence. The case of State ex rel. Davis V. Hunter, 124 Ioxa, 562, '104 Aa. St. Rep. 361, LOO R. Yi. 510, does not conflict with thi8 rule, as in that case ELcon- dition imposed was held to be illegal. 4 Current Law, 872.

“If the particulnr period of, time fixed by the court ciithin v:hich the execution of the sen- tence of imprinon:r.ent ~(13 to be fully performa’d or suffered is extended, or held in abcysncs, or postFonea, the time or duration of impriaon&ent Is not thoreby increased, and the interruption of the execution of the sentence during the time the petitioner enjoyed his liberty under the .

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. conditional pardon was secured by him by his aoceptance of the condlticnal pardon, and the petltisnar cannot coaplaln of it. aIf the conditloa of+ the pardon upon which 2; the petitioner S3CUSed his rSLeaS8 fro5 iz&i,S- ,.'. oment has bee3 violated by bin, the pardon is void, and the petitioner may be arrested and'oom- pelled to undergo so much of the original sen- tence as he had not suffered at the tiza of his release. . . .m

Xn the case Of Ro Brock Kelly, 20 L. R. A. (X.5.) 337, the Supre.ne Court of California entered the same hold- ing as the Supreme Court of Florida did in the Horns case, saying that qthe power to annex to a pardon or commutation any reasonable cszditicn prior or subsequent 13 LQplied up- on the principle that the grzatcr includas the less." Tine case of l,?illor v. The State, 45 L. R. A. 502, before the Alabama Supre~;o Court, arose under a constltutionsl provi- sion vesting in the Governor the power to ranit fines and forfeitures and to grant reprieves, coxiutatioa of sen- tence and pardons. The statutes of that stats made ~rovi- sions for the granting of pnroles and Uiller v:es the re- eipient of such a proclanntisn. The parole having been revoked in oocordance with the provisions of' the statute and he hnving bean reincarcarated filed a petition for his release upon the ground of la02 of authority for his recom- mitment. The court there said that "the parole or a con- vict is in the nature of a conditi~znnl pardon and within ths constitutional grsnt o f the pardoning poxer to the Gov- ernor", and sustained the statutes. It wa3 further hol.C that "if he prefers to sews out his sentence as original- ly imposed ugon hln to a suspension of it by subjecting him- self to tha conditions nominated in the parole he has the clear right to do so. But if he elects to accept the parole and availn hinself of the liberty it conrers he must do so upon ths conditions upon which alone it is granted to him. One of these conditions is that his nentence shall continue in fieri and that the Governor shall have the power to ex- ecute it in full upon him should he forfeit the llbarty and inaunity oonditionslly securad to him by the executive or- der." A pardon may contain a condition that the conviot shall maintain &ood behavior and observe the law and the

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kiles of parole provided by the Board ,of Prison Cormis- sioners and the power zay be vested in the Governor to him- self alone detertins the question as to whether such coh- ditions have been violated. Ex parte Redwine, 236 S.,,.Y:. 96. ,,:;, .., In the oase of Ex parte Dornltzer, already quoted Srom, the court further said that “regardles8 of whether or not the Governor exceeded his aut.hority In granting, the BO- called reprieve Bdminson has no ground for complaint, Be accepted the favor of the Governor ana was thareupon released iron; jail .” In the instant oase the parolea, if they ware pa- roles, in ei’fect contained the conditions that if the prisoner should presently obtain hi.8 liberty for the period of tlma specified therein, he would thoroaftes serve the Bade length of time in tha penitentiary. The proclazatlons offered the prisoner the choice as t.o whether he would take his liberty at the time of the proclasLation or whether he would serve out his term and then take 8uCh liberty. Be preferred to have his liberty then and to give up to tho State an equal period of tine at a later date. ilo had that choics, and he exercised it. If in his judgizsnt the proclaaation offered him nothins of value, then he was not conpelled to accept it. Vi0 do not believe that there was anything imornl in the oondition which would require the later servioo of the ‘remainder of the sentence. AS indicated above, we ara also of t.he opinion that the power to pardon includes the power to issue this le383r. form of executive OleJ3enCy~

Prom 8 R. C. 1. page 259, we quote: *The judgment is the penalty of the law, as deolared by the court, while tha direction with respect to the time of carrying it into ef- fect is in the nature of an award of execution. Y?hore the penalty is imprisonment, the aentenco of the law is to be satisfied only by the actual suffering of the inprisohmnt Inposed, unless re- nitted by death or by soice legal authority. There- fore ths expiration of tirie without imprisonmnt is in no sense an execution of the sentance. AC- cordingly where the judgment and sentence i8 im- prisonment for a certain tirm, and from any cause

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the tlrne elapses without the imprisonment be- ing endured, it will still be a valid, sUbsi&-6 ing;unexecuted judFgnant. And where a convict :~:‘a 18 permitted to absent himself from prison the time when he is absent is no part of the sentence, Ana therefore where a convicted defendant is at liberty and has not served his sentence, if’ there is no statute to the contrary, he nay be rear- rested as for an escape, and ordered into custody on the unexecuted judgment, and the result 1s the same if he escspos to another jUriBdiOt.ion and 18 brought back, though by illegal means.” In the case of Hopkins v, North, 49 A. L. R. 1303, by the Knryland Court of Appeals, a man named Whitby serv- ~lng a sentence in jail bsoane seriously ill and uron advice of the jail physician was given over to SOUBof his friend8 ,so that he could receive proper trentaont. I-Xcwa8 taken to a hospital or sanitarium. Later the State’s attorney filed a mandamus petition to corn@ t~he shorlff to arrest Xhitby and keep him in jail until he haa served out the part of the scntenoe which remained unserved at the time he had been re- leased for medical treatment. The mandamus was granted. From the oourtcs opinion .we quote as follovis:

*The chief questions are whether Ylhitby is still subject to the sentence imposed upon him, and, if ha is, thon whether a mandamus ifWed upon the petition of the state’s attorney is a proper remedy to use in compelling tho sheriff to ‘8~ that he serves that sentence? The de- -, oided weight of authority, and, in our opinion, the better reasoned OQB~Bhold that, where a prisoner 8ocurcs his liberty through some il- logal.or void order, it is to be treated as an escape, and he can be retaken and compelled to serve out his sentence, even though the time in which tho original sentence 8hsuld have been served has expired. (Citing authorities) In the present cass it is, as we have seen, con- oeded. that the magistrate’s order directing \Yhitby(s release v:as invalid, and that the sher- iff’s action in rolcnoing him, though done in good faith, v:as unauthorized and illegal, but it is also olerr that Khitby was given his liberty upon tha distinct understanding that

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rhen he haa recsverea rron his illness he v:0~ia return to jail unexpired portion and eerv0 the of his sentence, R8 tOOk EiaViIntags Of his il- legal release by leaving jail, and secured the benefit of the special medical treatment which <- this release enabled him to obtain, and it *- would seea to ba a travesty on justice to hold :jz. that he can now eacape the penalty the law has inflicted upon his by chining that his release Va iE’ ille$ il l .Such a holding would not only be technical, but, under the facts shown in the re- cord, 1.t would also be against public policy. We accordingly thick that under the circuit- stances OP this case #hitby m3t be treated as having escaped, and 30 is subject to arrest, and t.hat upoc his arrest he can be conpslled to 88rve the rezaindor of his s3ntmce.n In he case of Re Volker, 12 A. L. R. 1267, by the Nebraska Suprsne Court, the defendant heving been con- victed sna ssnteaced to a tern of in~risonmnt nnd hsving appealed and tha sentence having been affimed, and the stat3 of~ficisls havi:lg failed to take hti into custody in- nedlately upon affimance, the question under consideration was whet.her the convict was entitled to have the tine in- tervening between the return of the mndate and the tine of his crrcst creaited upon his sentence. The court a8niod the credit. Front the oourt*s opinion we quote as follows: “True, while Volker did not request the delay, he was charged with knowledge of the status of his case and thereby he clearly ac- quiesced in the delay. Counsel observe that Volksr assumd that *the wtter had been diu- posed of in his favor.* But ~111 it bs serl- ously argued that the xiere assumption of+ a material fact by a litigant can bo made to take then place of an existing fact7 And a lit- gant is, of course, in the absence of fraud or decait, clearly bound by the actual status of his case. There is nothing in the record going to show that Volkor ever at any tim3 nndo inquiry of any psrson or of any court official in respect of the then pending ca3e ageinst hFn in.the district court for Douglas County.

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The relator*s contentlzn of his ignorance of the status of the case and of its dlspostion, under the facts before US, affords no grounds,,- for his discharge from the penalty of lmpriso&. &ent imposed by t.hs court. In a similar case IA Califcrnis, the court announced this self- evident rule:

“‘The essential part of a sentence of im- prisonr;!ent is not the time when it should be executed, but the ext.ent of thepunishmont fixed; and the expiration of tima, without imprison- ment~. is in no sense an execution of the sen- ten&. f Rx parte Vance, 90 Cal. 208, 27 p. 209, 13 L. .R, A. 574. “‘The time when a nentence of 1mprisoAment -- shall comtenka, alt,hough specified in the same en- try, is properly’ no part of the senteAce, and may be ohanged by the court at a subsequent term if for any reason execution of the sent,ence has been delayed. 1 Bcrcatein v. Onited States (C. C. A.) 254 B. 967, 3 A. L. R. 1569,” In th3 cam of Ex parte Vance, 27 P. 209, by the Supreme Court of California, a prisoner liable t3 jail sarv- ice because of failurs to pay a fine was allowed to go at. liber-ty by tha sheriff without authority. It was held that the tim of the prisoner’s abseAcc from jail in violation of law could not-ba oonsidered as having spent in jail in satisfaction of the jud~gent which required his actual im- prisonmnt , It was pointed out that the essential part of the judgment v;as not the time when it should be executed but ths extent of the punishTent fixed. IA the case of- Te rroll v , Xi&As, 46 So. 727, befor:> the Gupr.>ne Court of Florida, a defendant had been convicted and sentenced to imprisoncent in ths county jail at hard labor for twelve months and said period of twelve months had elapsed. Under sgreomant of the prosecuting attorney, however, he had been permitted to 80 at liberty during said period of time. The court poiAted out that the prisoner had been at liberty with his oven consent if not at his own request and that the time fixed for the col;=eAcem3nt of the execution of the sen- tence was not one of its~ essential ,elezents and strictly speaking v;as not part of the scnte3Ca at all, saying that .

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the essential portlon of the sentence is the punishment, and that as a rule the eentence with rcferanoe to the time OS punishment and the amount thereof should be striotly execut,ed. ft iS ii@3iA AOted that the Court rather $ressed In that case the fact that the prisoner had been at.,jiberty with his own consent and at his own request, In opinion No. 2421 by Assistant Attorney General I,. C. Sutton, dated I?.a?ch 16, 1922, found at page 171 .of the 1920-22 Attorney General’s Reports, the opinisn was expressed that in cases of furloughs granted to prisoners by the Gover- nor the question ae to whether the time sgent out on furlough should be counted on the sentence as having been served or whether it should be counted out %a$ a question to be derived trm the proclamation. ft’must be borne in alnd that the prisoner was out of confinement during the period covered by these two procl.a- mations with his O:?A cdment and upon his own agreement. Re stands in a different light from the prisoner who ha.: been taken from jail or the penitentiary without his consent and lncarcernted else:vhere; as in the C&SOSof ?.%nnesot.a vs. Jor- genson, 224 ?I.!f, 156, in Re Jennings 118 Fed. 479, and Schmidt vs. Swope, 91 Fed. (2) 260, and such as v;e had un;:er consid- eration in our opinion Ro. O-1255. Under any view which vie may take of the proclamations in question, it is our oi~lnion that the tine, during which Hines Rudson was out of the Peni- tentiary under the same should not be considered a3 tine served on his sentence.

Youra very truly ATTCRNXYGZTEP~LOF TE-XAS