In 2015 our Legislature passed Senate Bill 746, a bill that amended several provisions within the Civil Commitment of Sexually Violent Predators Act contained within the Health and Safety Code. The amendments removed a provision that had made it a criminal offense for a sexually violent predator who had been civilly committed to fail to comply with the terms of his sex offender treatment. Furthermore, the Legislature included a savings clause in S.B. 746 that made the legislation apply to anyone who had been convicted of the offense of violating the terms of his civil commitment and whose direct appeal of that criminal conviction was pending at the time the legislation became effective. 1 When Governor Abbott signed S.B. 746 into law, it became effective immediately. Appellant's direct appeal of his criminal conviction for violating the terms of his civil commitment was pending at that time.
After S.B. 746 became effective, Appellant filed a supplemental brief with the court of appeals arguing that his conviction was not a final conviction and it should, therefore, be reversed because the amendment to Section 841.085 decriminalized his conduct. The State agreed that this savings clause applies to Appellant because the statute became effective when Appellant's conviction was not yet final due to the pendency of his case on appeal. However, the State argued that the savings clause in S.B. 746 violated the Separation of Powers Clause of the Texas Constitution because it usurped the governor's power to grant clemency. 2 The court of appeals affirmed his conviction, holding that the savings clause in S.B. 746 violates the Separation of Powers Clause of the Texas Constitution. We granted Appellant's petition for discretionary review on the sole issue of whether the Court of Appeals erred in holding that the savings clause in S.B. 746 usurped the governor's clemency power. We reverse and vacate the judgment.
I. Case History
This case presents a constitutional question regarding the powers of the Executive and Legislative branches of our government. The underlying facts of the case are not determinative; however the time line of events in this case is important. In January 2011, the trial court determined that Appellant was a sexually violent predator, as defined in Texas Health and Safety Code § 841.003, 3 and civilly committed him in accordance with Texas Health and Safety Code § 841.081. 4 The court ordered Appellant to comply with the provisions of Health and Safety Code § 841.082, the Agreed Final Judgment, and the Order of Commitment.
At the time of the offense, Health and Safety Code § 841.082(a)(4) required Appellant to participate in and comply with a course of treatment provided by the Office of Violent Sexual Offender Management (OVSOM). Between July 17, 2011, and March 21, 2013, Appellant failed to make progress in the treatment and violated several rules and requirements of his treatment program. On March 21, 2013, the OVSOM discharged Appellant from the Outpatient Sexually Violent Predator Treatment Program due to his unsuccessful progress in treatment. His discharge constituted a failure to comply with his course of treatment, as required by the then existing version of Health and Safety Code § 841.082(a)(4).
In June 2013, a grand jury indicted Appellant for violating Health and Safety Code § 841.082(a)(4). The State predicated the indictment on Health and Safety Code § 841.085(a), which, at the time, permitted prosecution for any violation of Health and Safety Code § 841.082(a). Appellant filed a pre-trial writ of habeas corpus and motion to quash and dismiss, arguing that the relevant Health and Safety Code provisions were unconstitutional. 5 The trial court denied the writ of habeas corpus and motion. On March 20, 2014, Appellant pleaded guilty to the offense charged and true to the enhancement paragraphs; the court assessed punishment at imprisonment for twenty-five years. Appellant filed an appeal with the Ninth Court of Appeals on March 17, 2015, raising the same arguments he made in his pre-trial writ of habeas corpus and motion.
While Appellant's appeal was pending, S.B. 746 was introduced in the Legislature. The bill proposed amendments to the Civil Commitment of Sexually Violent Predators Act contained within the Health and Safety Code. The amendments were designed to address "the growing crisis of the civil commitment of sexually violent predators program that could result in a major threat to the public safety in Texas." 6 Specifically, the Legislature was concerned with mismanagement of the OVSOM which had led to financial strain on the civil commitment program and threats by the vendors who housed civilly committed sexual violent predators that they would no longer house them. 7
To address this crisis, the amendments transferred authority over the civil commitment program to the Texas Civil Commitment Office. 8 The amendments also created a structure for the civil commitment program by implementing a tiered program and guidelines dictating how sexually violent predators would move through the tiers. 9 Based on the guidelines, sexually violent predators could move from a higher level of restriction to a lower level of restriction, or vice versa, based on their behavior and performance. 10
In conjunction with the tiered system to better monitor sexually violent predators throughout their civil commitment, the amendments also removed the failure to participate in and comply with the proscribed sex offender treatment program from the list of criminal offenses sexually violent predators are subject to under Health and Safety Code § 841.085. In effect, the Legislature made the difficult policy determination that the new tiered program would be better suited than criminal prosecution to address lack of participation in and compliance with sex offender treatment by those who had been civilly committed. In addition, S.B. 746 contained a savings provision instructing that the amendments were to apply to offenses "committed before, on, or after the amendment's effective date, except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected by this Act." 11 Due to the stated important public safety concerns associated with S.B. 746, the Legislature and Governor Abbott determined that the amendments should be implemented as soon as the bill was signed by Governor Abbott. Governor Abbott signed S.B. 746 on June 17, 2015, and the amendments immediately became effective. This occurred while Appellant's case was pending on appeal and before his conviction became final.
After S.B. 746 became effective, Appellant filed a supplemental brief with the Court of Appeals, arguing that the amended Health and Safety Code § 841.085 applied to his case because his appeal was pending as of June 17, 2015, so his conviction was not final. Further, if the amendments applied to him then his conviction should be reversed because his conduct no longer constituted a criminal offense. The Court of Appeals held that the amended sections of the Health and Safety Code did apply to the Appellant because he did not have a "final conviction" as defined by this Court. 12 However, the Court affirmed his conviction holding that the application of the amended Section 841.085 to pending convictions usurps the governor's clemency power and thus violates Article II, sec. 1 of the Texas Constitution, the Separation of Powers Clause. 13
II. Analysis
Before addressing the contested issue in this case, we address preliminary issues which the State and Appellant, and this Court, after independent examination, agree on. 14 In asserting that the amendments decriminalize Appellant's conduct, both parties rely on the plain language of the amendments. Health and Safety Code §§ 841.082 and 841.085 were amended as follows:
SECTION 13. Section 841.082(a)
(a) Before entering an order directing a person's [ outpatient ] civil commitment, the judge shall impose on the person requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community. The requirements shall include:
(1) requiring the person to reside where instructed [ in a Texas residential facility under contract with the office or at another location or facility approved ] by the office;
(2) prohibiting the person's contact with a victim [ or potential victim ] of the person;
(3) [ prohibiting the person's possession or use of alcohol, inhalants, or a controlled substance;
[ (4) ] requiring the person's participation in and compliance with the sex offender treatment program [ a specific course of treatment ] provided by the office and compliance with all written requirements imposed by the [ case manager or otherwise by the ] office;
(4) [ (5) ] requiring the person to:
(A) submit to tracking under a particular type of tracking service and to any other appropriate supervision; and
(B) refrain from tampering with, altering, modifying, obstructing, or manipulating the tracking equipment; and
(5) [ (6) ] prohibiting the person from [ changing the person's residence without prior authorization from the judge and from ] leaving the state without [ that ] prior authorization from the office
[ ; [ (7) if determined appropriate by the judge, establishing a child safety zone in the same manner as a child safety zone is established by a judge under Section 13B, Article 42.12, Code of Criminal Procedure, and requiring the person to comply with requirements related to the safety zone; and
[ (8) any other requirements determined necessary by the judge ].
SECTION 19. Section 841.085(a)
(a) A person commits an offense if, after having been adjudicated and civilly committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement imposed under Section 841.082(a)(1), (2), (4), or (5) [ 841.082 ]. 15
The State convicted Appellant of violating the former version of Section 841.082(a)(4), which at the time required Appellant to participate in and comply with the treatment program provided by the OVSOM and to comply with all written requirements imposed by the OVSOM. 16 At the time of Appellant's conviction, Section 841.085(a) made it a crime for Appellant to violate this statutory subsection. When the Legislature amended Section 841.082 it redesignated this subsection as 841.082(a)(3). Under the current version of Section 841.085(a), the failure to participate in and comply with the treatment program provided by the Texas Civil Commitment Office is a violation of subsection 841.082(a)(3) but no longer subjects the violator to criminal prosecution. Additionally, S.B. 746 contained a savings clause which prohibits future prosecutions based on the failure to comply with a treatment program.
When we interpret statutes, our duty is to determine and give effect to the apparent intent of the legislators who voted on it. 17 In determining the legislative intent, we focus our attention on the text of the statute and how ordinary legislators would have understood the text. 18 We are not empowered to substitute what we believe is right or fair for what the Legislature has written, even if the statute seems unwise or unfair. 19 "[J]udicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." 20 If we only defer to the legislature when we agree with their policy determinations then we are not deferring to the legislature at all.
Here, the Legislature not only removed Appellant's conduct from the list of criminally punishable violations, but it also prevented future prosecutions for similar conduct. Viewing Section 841 in its entirety, along with the savings clause, the plain language demonstrates an intent to decriminalize this type of conduct. Therefore, we agree with the parties and the court of appeals that the amended sections of the Health and Safety Code decriminalized the failure to participate in and comply with a civil commitment treatment program. 21
Appellant and the State also agree that, under the savings provision included with the passage of S.B. 746, the amendments apply to Appellant. The savings provision provides:
The change in law made by this Act in amending Section 841.085, Health and Safety Code, applies to an offense committed before, on, or after the effective date of this Act [June 17, 2015], except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected by this Act. 22
We have repeatedly held that a judgment of conviction is not final while the conviction is on appeal. 23 Appellant's conviction was pending on appeal as of June 17, 2015, and as such, was not a final conviction as of the effective date of the amendments for purposes of the applicability of the statute. 24 The court of appeals properly held that the amendments to Section 841.085 apply to Appellant. Having found that the amendments to the Health and Safety Code decriminalize Appellant's conduct and that the amendments apply to Appellant, we turn to the contested issue in this case: whether the amendments and the savings clause, in particular, violate the Separation of Powers Clause of the Texas Constitution by either (1) usurping the governor's clemency power, or (2) unduly interfering with it.
A. Standard of Review
We review de novo a challenge to the constitutionality of a statute. 25 We afford great deference to the Legislature and presume that the statute is constitutional and that the Legislature has not acted unreasonably or arbitrarily. 26 The party challenging the statute normally bears the burden of establishing its unconstitutionality. 27
B. Separation of Powers
The separation of powers among branches of government is fundamental in our country's history. Despite not using the terms "separation of powers" in the United States Constitution, the principle has been applied since its foundation. 28 The Texas Constitution expressly provides for the separation of powers in Article II § 1 ; it states:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. 29
Although the language of the separation of powers provision is rigid, there is natural overlap in the duties proscribed to each branch. Not every instance of overlap, therefore, will amount to a violation of separation of powers. 30
We have recognized that the Separation of Powers Clause may be violated in either of two ways. First, it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more "properly attached" to another branch. 31 When a branch of government violates separation of powers in this way, it is said to have usurped another branch's power. 32 The provision is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. 33 This undue influence test " 'takes the middle ground between those who would seek rigid compartmentalization and those who would find no separation of powers violation until one branch completely disrupted another branch's ability to function.' " 34 In order to determine whether the Legislature violated separation of powers, we must first determine the extent of the Executive's power to grant clemency and the extent of the Legislature's power to create and repeal laws.
In drafting a constitution, the people of a state are at liberty to grant any branch of government the power to grant clemency. Since 1845, every version of the Texas Constitution, including the first, has granted the clemency power to the Executive Branch. Clemency power rested exclusively in the Executive branch until 1935 when the Texas Constitution was amended to allow for the creation of what we now regard as community supervision within the criminal justice system. 35 The Texas Constitution grants the Executive branch this power in Article IV, Section 11. It provides, in relevant part:
In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction or successful completion of a term of deferred adjudication community supervision, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons[.] 36
We have interpreted the term "after conviction" to mean after the entry of a guilty verdict. 37 Therefore, the governor may execute this power while a case is pending on appeal. 38
Consistent with the constitutional provision that prohibits any one branch of the government from exercising control over any other branch, we have long recognized that this Court has no power to control nor right to review the Governor's exercise of his clemency power. 39 Our sister court has spoken on the constitutional limits on the Legislature's authority: "[T]he Legislature is without authority to add or take away from those powers or duties or substantially alter them." 40 So have we. 41 And, without an express limitation within the Constitution, we presume that a delegation of authority to one branch of government is exclusive. 42 Thus, the Legislature may not usurp or unduly interfere with the Governor's authority to exercise his clemency power after conviction.
Of course, this cuts both ways. Our Constitution vests all lawmaking power in the Legislature of the State of Texas. 43 Provisions of our Constitution serve only as a limitation on power of the Legislature and not as a grant of power. 44 This includes the power to make, alter, and repeal laws, in accordance with the other provisions of the Constitution. 45 Of importance here, the Legislature possesses the sole authority to establish criminal offenses and prescribe punishments. 46 The Governor's clemency power has never extended so far that he may presume to exercise or substantially interfere with the Legislature's prerogative to make, alter, and repeal laws, let alone define criminal offenses or fix punishment for those offenses. 47 Neither does this clemency power grant appellate jurisdiction to the governor over the acts of the judicial branch. 48 To resolve this tension among the different branches of government, we must examine the character and effect of an executive pardon as well as the character and effect of a legislative repeal as such acts were understood at the time our Constitution was first ratified.
1. What is the character and effect of a pardon?
The Legislature's decision to make, alter, and repeal laws can violate the separation of powers when it grants trial courts the discretion to lower a particular defendant's sentence after sentencing or exempt a defendant from serving his or her sentence based on new legislation. 49 However, when amendments to penal provisions invalidate an underlying conviction, the Legislature has validly exercised its power to determine criminal conduct and it has not usurped the governor's power to grant clemency. 50 A look into the meaning of clemency and the understanding of the effect and the character of a pardon at the time our constitution was first passed by the citizens of Texas makes this clear.
The governor's power to grant clemency encompasses three methods of clemency: reprieve, commutation, and pardon. 51 A "reprieve" delays the execution of a judgment; it merely postpones the sentence for a time. 52 We have defined "commutation" as a "change of the punishment assessed to a less severe one." 53 A "pardon" is "an act of grace proceeding from the power entrusted with the execution of the laws which exempts the individual from the punishment the law inflicts for a crime he has committed." 54
From these definitions, it is apparent that the governor's clemency power allows the governor to affect the punishment an individual is subjected to. The clemency power does not allow the governor to affect the underlying conviction. 55 This is so because a pardon, and other forms of clemency, forgive only the penalty and do not allow the courts to " 'forget either the crime or the conviction' "; a pardon implies guilt and does not obliterate the fact of the commission of the crime and the conviction. 56 This has always been the understanding of governor's clemency power as it has been enshrined in our Texas Constitution.
We recognize, however, that we have not always used consistent language in this regard. For example, in Snodgrass v. State , we held that the Legislature cannot delegate to courts the ability to suspend a sentence after conviction, though that case has since been undermined by a Constitutional amendment. 57 Additionally, in Carr v. State we stated that "[a] full pardon blots out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." 58 This language, however, was taken uncritically and unnecessarily from the United States Supreme Court case, Ex parte Garland. In Ex parte Garland , the United States Supreme Court had declared that: "all the authorities concur[:] A pardon reaches both the punishment prescribed for the offence and the guilt of the offender[.]" 59
But Carr did not deal with the question of whether a pardon actually removed a conviction. 60 It dealt with whether the governor's pardon at issue had removed a legal disability flowing from the conviction, namely whether the pardon had restored a witness's competency as a witness. 61 Neither did Garland for that matter. Garland considered a legislative act that prevented a defendant from practicing law in federal court despite receiving a full pardon for a previous conviction for treason (based upon participating in the Civil War as part of the Confederacy). 62 The act at issue in Garland was declared unconstitutional because it undermined the President's removal of the consequences of a past conviction, not because it removed the conviction itself. 63 The language we took from Garland suggesting that a pardon "blots out the existence of guilt" was not necessary to the resolution of the case. 64
Indeed, prior to Garland , the United States Supreme Court had already explained that "a pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts an individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." 65 The holding in Garland was consistent with this understanding of the effect of a pardon; the language quoted in Carr was not. And the United States Supreme Court seems to have rejected this language when it later recognized that the acceptance of a pardon actually implies a confession of guilt. 66
The same can be said of the decision in Hunnicutt v. State , which we relied upon in Carr. There, we considered whether a former convict who benefitted from a conditional pardon (conditional because it did not take effect until the successful completion of his sentence) had regained his competency to testify by virtue of receiving that pardon. 67 We quoted Bishop on Criminal Law for the proposition that " '[a] full pardon absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided.' " 68 We held, as we would later hold in Carr , that the pardon had removed a legal disability that arose from that conviction, not the conviction itself.
We later summarized these holdings in Warren v. State. There, we considered whether a pardon for a 1889 murder would allow the defendant to file an affidavit in support of an application to have his sentence suspended. 69 Though the pardon purported to be a full pardon, it took effect at the expiration of his sentence, rendering it a conditional one. Citing to many cases including Carr and Hunnicutt , Judge Lattimore explained that "None of the authorities known to this court undertake to hold that any character of pardon less than a full pardon, would wipe out and obliterate the legal consequences of a felony conviction[.]" 70 Again, we explained that a full pardon only removes the legal consequences of the felony conviction, not the conviction itself.
While we did reconsider the scope of the clemency power in Jones v. State , we did not stray from our already well-established understanding that a pardon acts as a removal of the legal disabilities associated with a conviction, rather than a removal of the conviction itself. 71 As it was with Carr and Hunnicutt , the issue in Jones focused on whether a pardon had limited the consequences flowing from a conviction. Specifically, we addressed whether a prosecutor could use a prior felony conviction to enhance the defendant's offense if the defendant had been pardoned for the prior felony. 72 We acknowledged that this very question had been decided in the defendant's favor thirteen years earlier in Scrivnor v. State. 73 However, we took the opportunity to thoughtfully examine the extent of the pardon power in Texas.
We noted that a pardon under our three branch system of government is intrinsically different than a pardon from the King under English Government. 74 Under English Government, the King had the power to set aside orders of the court; he alone could do so because the courts had no power over their final judgments. 75 In contrast, the Executive branch in our form of government, we explained, has no such power; the Judiciary has the sole authority over the entry of final judgments. 76 We recognized that "[h]e can pardon, but, 'as the very essence of a pardon is forgiveness or remission of penalty, a pardon implied guilt; it does not obliterate the fact of the commission of the crime and the conviction therefor[.]' " 77
We also noted that while earlier editions of Bishop's "learned treatise" had described the pardon power expansively, his more recent edition had recognized that the pardon power was necessarily more narrowly drawn in a constitutional government based upon a separation of powers. 78 Specifically, Bishop's 9th Edition examined cases from around the country 79 and the United States Supreme Court 80 and recognized that a pardon does not have the effect of "wiping out" a conviction when, by committing a subsequent offense, the defendant proved himself unworthy of the governor's grace and that such a pardon does not relieve the offender from any future penal consequences. 81 After a thorough examination of these issues, we concluded that "[w]hatever might have been the force and effect of the pardon" in earlier cases was immaterial due to the inherent limits on the governor's clemency power. 82
The Texas Constitution does not grant the governor the power to destroy judicial judgments and decrees. 83 It never has. While the clemency power permits the governor to discharge a convict from further penal service, he exercises no influence on the judgment of conviction nor does he have the power to do so. 84 With this understanding of the scope of pardons under the clemency power, we overruled in Jones all former decisions to the extent that they had incorrectly interpreted the pardon power too expansively. 85 But in reaching this conclusion, we did not alter our established understanding that a pardon only removes the consequences of conviction rather than the conviction itself. Rather, we recognized that some consequences of a conviction cannot be removed despite a pardon. 86
Since Jones , we have continuously held that a pardon does not obliterate the underlying conviction; it merely removes the legal disabilities associated with that conviction. The United States Supreme Court shares this understanding and has for over a century. 87 The State has certainly not argued that Jones should be overruled in favor of a brand new understanding of the character and effect of a pardon. And announcing a new, more expansive understanding and holding the legislative enactment at issue unconstitutional would run afoul of our duty to presume constitutionality and avoid such constitutional conflicts. 88
When the governor exercises his clemency power, the underlying criminal conviction remains. The pardoned conviction can subsequently be used to deny an individual bail 89 or probation, 90 and to enhance punishment in a later proceeding. 91 Although an individual may ultimately remove a pardoned conviction from his or her criminal records through an expunction, the expunction comes from a judicial process, not from the governor's grant of a pardon. 92 Overruling Jones would render all of these subsequent uses of a pardoned conviction unconstitutional. And yet it would not alter our understanding that a pardon only removes the legal consequences of a conviction, not the conviction itself.
2. What is the character and effect of legislative repeal?
In contrast, we have repeatedly applied legislative enactments that repeal criminal laws to cases pending on appeal. When the Legislature decriminalizes conduct and allows for the retroactive application of the decriminalizing, pending convictions predicated on that conduct are invalid. 93 The appropriate remedy, in those instances, is to reverse the conviction and dismiss the prosecution. 94
During the same time period in which our Court discussed the character and effect of a pardon, it applied the legislative repeal of criminal laws to cases pending on appeal unless the legislature specifically indicated that repeal should not apply to those cases. In 1907, for example, we considered a case where the defendant had been convicted of improperly catching and selling game fish in Harrison County. 95 But, while the case was pending on appeal, a legislative amendment decriminalizing the defendant's behavior took effect, and the defendant sought a reversal of his conviction on appeal. 96
In that case, we reversed the conviction, recognizing that there can be no penalty or criminality in violating a repealed statute. 97 This is because the legislative act of repealing the statute upon which the conviction is based annulled the conviction. 98 We have applied this understanding of the character and effect of a legislative repeal in a number of cases. 99
Indeed, this understanding of the effect of a legislative repeal of a criminal statute has been characterized as "universal." 100 This common-law rule can be traced back to the 1809 decision from the United States Supreme Court in Yeaton v. United States , which held that "it has been long settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, no punishment inflicted, for violations of the law committed while it was enforced, unless some special provision be made for that purpose by statute." 101 This was the understanding held by our framers regarding the character and effect of a legislative repeal when our first Texas Constitution was ratified. Yet, out of all the many cases analyzing the character and effect of our Legislature's repeal of a criminal statute, there are no instances in which this Court or our sister court held that the legislative repeal of a criminal statute amounted to the functional equivalent of a pardon. Had the case before us arisen at the time our framers drafted the Texas Constitution, it is beyond question that Appellant's conviction would have been reversed without any concern regarding the usurpation of the governor's clemency power.
Moreover, the cases in which we have found the Legislature actually usurped the governor's clemency power did not deal with a legislative repeal; they involved legislation which granted previously convicted defendants the ability to petition the sentencing court to hold a resentencing hearing to apply a new statute. In those cases, the legislation at issue continued to hold the defendants's conduct as a criminal offense; however it allowed them to be re-sentenced under new, less severe, sentencing provisions. The underlying convictions of the defendants in those cases remained unaffected by the amended legislation.
For example in State ex rel. Smith v. Blackwell , we examined a section of the Texas Controlled Substances Act which permitted any person who had been convicted of an offense involving marihuana, whether the conviction was pending on appeal or final, to petition the court for resentencing under new sentencing provisions. 102 Despite referring to the action as "resentencing," the statute permitted courts to impose a less severe punishment, i.e. a commutation, thus violating the Separation of Powers Clause. 103 We held it was unconstitutional for the Legislature to allow courts to change sentences after a final conviction. 104
Similarly, in Ex parte Giles , we considered a portion of the Texas Controlled Substances Act, which permitted an individual whose action was pending on appeal or commenced after the effective date of the section in question, to elect punishment under new sentencing provisions. 105 Again, the section we addressed permitted trial courts to set aside the earlier sentence and hold a new sentencing hearing to impose a new, less severe sentence, i.e. a commutation, in violation of the Separation of Powers Clause. 106 We held it was unconstitutional for the Legislature to allow courts to change sentences at any point after conviction and sentencing, whether or not the conviction was final. 107
In both cases, this Court took issue with the new sentencing hearings that would necessarily result in lower sentences imposed on the defendants. However, the present case presents a different scenario. The Legislature did not authorize new sentencing hearings that would allow courts to change sentences which had already been imposed when it amended Section 841 of the Health and Safety Code. The Legislature categorically determined that certain conduct was not criminal; the amendments reflecting this decision affected the validity of convictions, not just sentences. 108 There was no transfer of clemency discretion from the Governor to the Judiciary.
This difference is important in recognizing how the amendments to Section 841 conform with our Separation of Powers Clause. The Executive has the power to exercise discretion to grant clemency and affect sentences at any stage after an individual is convicted based upon the individual characteristics of each defendant. 109 The Legislature has the power to make, alter, and repeal laws and categorically criminalize or decriminalize behavior. 110 The Legislature validly executed this power when it removed Appellant's conduct from the list of conduct subject to prosecution under the Health and Safety Code. In enacting the savings clause, the Legislature permitted those whose convictions were not final to benefit from the new law. Although the ultimate effect of the amendments removes the consequence of a conviction, the reason is due to the invalidity of the conviction itself, not a commutation or pardon of the sentence.
The court of appeals and the State relied heavily on Giles in their opinion and argument, respectively, in this case. In Giles , we noted several issues which would arise if we upheld the statute which permitted courts to resentence defendants. 111 A look into those issues demonstrates how the statute at hand is different than that at issue in Giles. First, we noted that in order to resentence a defendant under the provisions of the act at issue in Giles , the underlying jury verdict upon which the judgment was based would have to be set aside in whole or in part. 112 Setting it aside in whole presented a problem because it would disrupt the conviction, and the defendant still committed a crime which warranted punishment. 113 Setting aside only the part of the verdict assessing punishment would deprive the defendant of his right to have a jury assess the punishment for the act in question. 114 These are not problems in the present case because the Legislature has determined that the underlying conduct is not a crime and therefore the Appellant is not guilty of criminal conduct warranting a conviction. Additionally, in the absence of a valid conviction, Appellant no longer needs to be punished. If Appellant had a jury verdict in this case, we could set it aside without the issues addressed in Giles.
Another issue we noted in Giles was that the act in question made conduct which was a felony a misdemeanor. 115 We questioned whether the court imposing a new sentence could find the defendant guilty of a misdemeanor, whether the underlying indictment even supported such action, and whether the district courts would have misdemeanor jurisdiction to dispose of the cases in such a way. 116 Again these issues are not present in the case at bar because the entire conviction is invalidated by virtue of the repeal, not merely altered.
The Legislature usurps another branch's power when it assumes, or is delegated, to whatever degree, a power that is more "properly attached" to another branch. 117 Repealing laws and decriminalizing conduct has always been part of the Legislature's delegated power. The Legislature has not assumed the power to grant clemency because decriminalizing conduct through the use of legislative amendments is not and has never been part of the executive's discretionary authority to forgive the legal consequences flowing from a conviction.
3. The Legislature did not unduly interfere with the Executive's power to grant clemency.
Separation of powers is also violated when one branch unduly interferes with another branch such that the other branch cannot effectively exercise its constitutionally assigned powers. 118 Therefore, in order to determine whether the amendments to the Health and Safety Code unduly interfere with the Executive branch's power, we consider the impact of the amendments on the Executive's exercise of its constitutionally assigned power. 119 In doing so we recognize the interplay amongst our branches of government and take a middle-ground approach between rigid compartmentalization of each branch's powers and allowing one branch to completely disrupt another branch's ability to function. 120
The amended version of Section 841 of the Health and Safety Code, and its savings clause, affects the validity of certain convictions obtained under Section 841.085 of the Health and Safety Code. It does not prevent the governor from granting clemency to those prosecuted under Section 841.085 whose convictions remain valid. In particular, it does not prevent the governor from granting clemency to individuals whose convictions have already become final under the previous law. In short, the Legislature has not prevented the Executive branch from effectively exercising its power to grant clemency in general, nor with regard to sexually violent predators convicted under Section 841 of the Health and Safety Code. Therefore, the statute does not unduly interfere with the Executive's power to grant clemency.
III. Conclusion
The Legislature does not violate separation of powers when it validly exercises its power to repeal criminal laws and does so without granting clemency power to the courts. In the present case, the Legislature has done just that. Both our Legislature and our governor have decided that a sexually violent predator's failure to comply with his sex offender treatment program as part of his civil commitment should be resolved through the civil commitment program rather than give rise to a new criminal conviction. The Legislature was within its power to make this difficult legislative change and apply that change to defendants whose criminal cases were pending on appeal at the time the amendment became effective. We defer to the statute crafted by our Legislature and signed by our governor because this legislative act did not violate the Separation of Powers Clause in the Texas Constitution. Accordingly, we vacate Appellant's judgment of conviction. 121
Yeary, J., filed a dissenting opinion in which Keasler, J., joined.
In every previous constitution of the State of Texas since the first in 1845, the clemency power has resided in the Executive Department. It resides there still. 1 See TEX. CONST. art. IV, § 11 (b). Among those powers is the power to "pardon" ordinary criminals. See id. ("In all criminal cases ... the Governor shall have the power, after conviction, ... to grant ... pardons [.]"). Today, the Court holds that a legislative act nullifying an existing criminal conviction nevertheless does not impinge upon our state constitutional mandate of separation of powers among the three discrete departments of government. See TEX. CONST. art. II, § 1 (dividing the powers of state government among "three distinct departments" and providing that their respective powers are mutually exclusive). The Court's holding is contingent upon its understanding of what constitutes a "pardon" in contemplation of the clemency power. Although I admit that the Court's understanding derives from relatively long-standing case law, I believe there is an older, broader definition of "pardon" that has greater constitutional provenance and is far more likely to correspond to the Framers' original conception of what a pardon-or at least a full pardon-does. By my understanding of "pardon," the Legislative Department in this case encroached upon an Executive Department prerogative. I would therefore hold that the legislative enactment violated Article II, Section 1, of the Texas Constitution, and affirm the court of appeals' judgment.
SEPARATION OF POWERS
After setting out the three "distinct departments" of state government, Article II, Section 1, goes on to provide, as it has since its first incarnation in 1845, that "no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in instances herein expressly permitted." Id.
Article IV, Section 11(b), in turn, assigns the general clemency power to the Executive Department. In keeping with these constitutional provisions, we have long held that "the power ... to pardon ... is one confided by our Constitution to the Governor of this state, over whose discretion in such matters this court has no control or right of review." Ex parte Gore , 109 Tex.Crim. 244 , 4 S.W.2d 38 , 39 (1928). And it is not just the judiciary that is so constrained: "[W]hen the Constitution defines the duties of an agency of the government, the Legislature is without authority to add or take away from those powers or duties or substantially alter them." Ferguson v. Wilcox , 119 Tex. 280 , 28 S.W.2d 526 , 533 (1930). Moreover, when the Constitution confers a particular power to one department, it is presumed to be an exclusive delegation, unless it is otherwise made express in the Constitution itself. Id. at 532 . 2 Any attempt by one of the departments to exercise, or to unduly interfere with, a power assigned to another department is "null and void." Ex parte Giles , 502 S.W.2d 774 , 780 (Tex. Crim. App. 1974) ; State ex rel. Smith v. Blackwell , 500 S.W.2d 97 , 101 (Tex. Crim. App. 1973). And when one department actually exercises a power of another (as opposed to merely interfering), it violates separation of powers to do so " to whatever degree. " Armadillo Bail Bonds v. State , 802 S.W.2d 237 , 239 (Tex. Crim. App. 1990).
What this means is that, outside of the context of probation, neither the Judiciary nor the Legislature may presume to exercise, or substantially interfere with, the Executive Department's exclusive prerogative to confer (or not) clemency "after conviction." We have consistently construed "after conviction," for purposes of Article IV, Section 11(b), to mean not after a formal judgment of conviction is entered in the trial court (much less what we would now call a "final" judgment for other purposes), but at an earlier junction: after a verdict of guilt or the acceptance of a guilty plea. See Snodgrass v. State , 67 Tex.Crim. 615 , 150 S.W. 162 , 172-74 (1912) (op. on reh'g) ("Thus it is seen that the terms 'after conviction' in our Constitution do not embrace the sentence, but simply mean the determination of guilt by the tribunal authorized to try the issue of guilt or innocence of a defendant and a person becomes subject to pardon whenever that issue is finally determined."); Giles , 502 S.W.2d at 784 (relying on Snodgrass to reject the argument that "until there is ... a final conviction there can be no infringement upon the Governor's constitutional powers to grant pardons, commutations, etc.", and citing other cases "in accord with the Snodgrass interpretation of the term 'after conviction' "). "And the Snodgrass court forcefully pointed out that the meaning of the words of a Constitution at the time they were placed therein cannot be altered or amended by legislation at a subsequent time." Giles , 502 S.W.2d at 784 . See also Snodgrass , 150 S.W. at 172 . 3 Thus, we are constrained to hold that neither the Legislative nor the Judicial Department may encroach upon the Executive Department's exclusive prerogative to confer a "pardon" at any time "after conviction"-that is to say, at any time after a finding of guilt as reflected by a jury verdict or acceptance of a guilty plea.
Here, the Legislature has enacted a savings clause that would require a trial court to nullify an already existing guilty verdict on the basis that, after the conduct upon which the verdict was based was committed, the penal law that criminalized that conduct was repealed. The issue in this case devolves into a question whether this has the necessary effect of "pardoning" the defendant whose conduct is thus retroactively rendered innocent. The answer depends upon what a "pardon" is in contemplation of Article IV, Section 11(b).
WHAT IS A "PARDON"?
Boiled down, the Court today derives its narrow definition of "pardon" from a pair of cases. First, in the text, the Court quotes a definition taken from the opinion on original submission in Snodgrass : "[A]n act of grace ... which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed." Majority Opinion at 575(citing Snodgrass , 150 S.W. at 165 (op. on orig. subm.)). In a footnote shortly thereafter, the Court cites a second, more recent opinion that similarly limits the effect of a "pardon" to removing the penalty for an offense, but not the offense or the conviction therefor. Majority Opinion at ---- 574n.56 (citing Watkins v. State , 572 S.W.2d 339 , 341 (Tex. Crim. App. 1978), which in turn quotes Jones v. State , 141 Tex.Crim. 70 , 147 S.W.2d 508 , 511 (1941), for the proposition that "the Governor's pardon forgives only the penalty, 'but he has no power to direct that the courts shall forget either the crime or the conviction.' "). 4 Thus, as I understand it, the Court today holds that the Legislature's action in retroactively rendering Appellant innocent in this case did not constitute a "pardon," in derogation of the Governor's authority, because it did not remit the penalty alone, but instead obviated the possibility of penalty by removing the criminality of his conduct altogether. But that is what a "pardon" does in my book.
Older case law bears me out in this. In Snodgrass itself, in our opinion on rehearing, we revisited the question of what a "pardon" constitutes for purposes of separation of powers analysis and provided a much more expansive answer. We asked ourselves: "What is a 'pardon'?" We replied:
That term has been defined and has a well-understood meaning. In Carr v. State , [ 19 Tex. Ct. App. 635 , 660 (1885) ], this court held: "A pardon is a remission of guilt."
Snodgrass , 150 S.W. at 176 (op. on reh'g). 5 We also observed that "[t]his definition is in accordance with the decisions of all the courts of last resort not only in this country, but of England as well." Id. A canvass of our own earlier cases confirms this assertion.
Carr involved an issue of whether a gubernatorial pardon served to restore the competency of a witness to testify at the appellant's criminal trial. Though all three judges on the then-Texas Court of Appeals weighed in with opinions in the case, they all agreed that, e.g. , "[a] full pardon blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." 19 Tex. Ct. App. at 661 (opinion of Presiding Judge White) (taking verbatim language from the opinion of the United States Supreme Court in Ex parte Garland , 71 U.S. 333 , 380, 4 Wall. 333 , 18 L.Ed. 366 (1866) ). 6 In Ex parte Garland , the United States Supreme Court had declared that "all the authorities concur[:] A pardon reaches both the punishment prescribed for the offence and the guilt of the offender [.]" 71 U.S. at 380 . Similarly, all the members of the Supreme Court agreed in 1872 "that the pardon [power of the President] not merely releases the offender from the punishment prescribed for the offense, but ... it obliterates in legal contemplation the offence itself." Carlisle v. United States , 83 U.S. 147 , 151, 16 Wall. 147 , 21 L.Ed. 426 (1872). See also Osborn v. United States , 91 U.S. 474 , 478, 23 L.Ed. 388 (1875) ("[T]he pardon, in releasing the offence , obliterat[es] it in legal contemplation[.]"
); United States v. Klein , 80 U.S. 128 , 147, 13 Wall. 128 , 20 L.Ed. 519 (1871) (a pardon "blots out the offence pardoned and removes all its penal consequences") (all emphasis added).
Six months before the Texas Court of Appeals' decision in Carr , it had spoken on the same question, but with a unified voice. Hunnicutt v. State , 18 Tex. Ct. App. 498 (1885). In holding that a pardoned convict should have been permitted to testify at trial (even though he had not been pardoned until after completing his prison sentence), 7 the Court observed that:
[t]he power of the executive of the State, under the State Constitution, to pardon offenses, is of the same general nature as that conferred upon the President of the United States by the Federal Constitution, except that the pardoning power of the president extends to the pardon of offense before conviction, while the Governor can only pardon after conviction.
Id. at 517 . We quoted Mr. Bishop's learned treatise to the effect that "[a] full pardon absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided." Id. at 519 (quoting 1 Bish. Crim. Law § 916 (7th ed.) (emphasis added)). See also Locklin v. State , 75 S.W. 305 , 307 (Tex. Crim. App. 1903) (Governor's pardon served to restore witness's competency to testify in murder prosecution). 8
Ten years later, this Court addressed the question of whether a convicted felon can serve on a jury after he has been pardoned by the Governor. 9 Easterwood v. State , 34 Tex.Crim. 400 , 31 S.W. 294 (1895). Holding that he may, we cited the same Supreme Court authorities (and others) to the effect that a pardon constitutes "a purging of the offense[.]" Id. at 296 . So secure was the Court in its perception that a pardon erased, not just the penalty, but the offense itself, that we observed:
It would seem almost a work of supererogation now to discuss the effects of an absolute pardon, and it would appear almost strange at this late day that its effect could be thought to be otherwise than that of complete remission of all guilt that might attach to the conviction.
Id. We concluded, accordingly, that "[w]hen a full pardon takes effect, all disabilities disappear, and the grantee stands as if he had never been convicted." Id. at 297 .
The question in Sanders v. State , 108 Tex.Crim. 467 , 1 S.W.2d 901 (1928), was whether a felony conviction for which the appellant had received a pardon could be used as the basis to revoke his suspended sentence in an earlier felony conviction. Relying upon language from many of the cases I have already discussed, the Court held that the pardon "wiped out" the latter conviction, and the trial court erred to rely upon it to revoke the appellant's suspended sentence in the earlier conviction. Id. at 902-03 . See also Warren v. State , 127 Tex.Crim. 71 , 74 S.W.2d 1006 , 1008 (1934) (observing in dicta that a defendant who has been granted a full pardon for an earlier felony conviction would not be prevented from obtaining a suspended sentence in a subsequent felony prosecution, since the pardon would "wipe out the stain of guilt" for the earlier felony conviction).
Yet another variation on the question of the effect of a full pardon was presented in Scrivnor v. State , 113 Tex.Crim. 194 , 20 S.W.2d 416 (1928). The prosecution there attempted to use a prior felony conviction to enhance the appellant's punishment for a subsequent felony offense, but the appellant had been pardoned for the prior offense. Citing a host of authorities (including many I have mentioned above), the Court held that the pardon rendered the enhancement unavailable, explaining that, "as the first offense was in legal contemplation blotted out, and its consequences removed, by the pardon of the governor, it must be regarded, for the purposes of this case, as though it had never been committed." Id. at 421 (op. on reh'g) (quoting Edwards v. Commonwealth , 78 Va. 39 , 44 (1883) ). This was unequivocally the state of the law up until the Jones case was decided in 1941. 10 Jones v. State , 141 Tex.Crim. 70 , 147 S.W.2d 508 (1941).
The issue in Jones was exactly the same as in Scrivnor : may the prosecutor use a prior felony conviction to enhance the defendant's present offense if the defendant has been pardoned for the prior felony? The Court acknowledged that "[t]he very question was definitely decided in favor of [Jones's] contention in" Scrivnor , but it declared itself nonetheless "at liberty to follow the Scrivnor case or refuse to do so." Jones , 147 S.W.2d at 509 . Nothing had changed in the thirteen years separating Scrivnor and Jones -except for the personnel on the Court itself. Judge Hawkins, who was the lone dissenter in Scrivnor in 1928, had become the Presiding Judge by 1941, and he was joined by three new judges, one of whom, Judge Beauchamp, authored the Jones opinion. After discussing the same authorities the Court had cited in Scrivnor , the Court in Jones simply announced a new result, overruling "[a]ll former decisions" to the contrary. Id. at 510-11 . "We find no condition[,]" Judge Beauchamp declared, "under which our courts have ever held the Governor's pardon to effectively wipe out the existence of a fact, save and except in the application of the enhancement statute." Id. at 511 . This assertion is demonstrably false, as evidenced by the holdings in Carr , Hunnicutt , Easterwood , and Sanders . Notwithstanding this well-established and uncontradicted line of cases, the Court announced that, under the pardon power, "[t]he Governor can forgive the penalty, but he has no power to direct that the courts shall forget either the crime or the conviction." Id.
Exactly why, given the same precedents, did the Court come to opposite conclusions in Scrivnor and Jones ? In Scrivnor , the Court had observed that, in the 1892 seventh edition of his oft-cited treatise, Mr. Bishop had endorsed the view that a pardoned conviction could not be used to enhance the penalty for a subsequent conviction; the pardon rendered the first offense a nullity so that there was no earlier felony conviction to enhance the subsequent one.
Scrivnor , 20 S.W.2d at 418 . Later, however, in 1923, editors of the ninth edition had added a new section to the treatise that expressed a contrary view, fueled by some later cases around the country that had taken the position that a pardon should not have the effect of "wiping out" a conviction when, by committing a subsequent offense, the defendant proved himself unworthy of the Governor's grace.
Noting this contradiction within the later edition, the Court in Scrivnor had opted for Bishop's original view over that of his later editors:
Mr. Bishop says ... that the mistake lies in considering the latter offense, the second one , because the first one having been pardoned, the latter is not the second one. If it be said that the later burglary by A makes him an habitual criminal, it might well be asked what makes him such in terms of the law? There could be but one answer, which is that the plea and proof of his former conviction makes him such. To us it seems idle to say that such conviction may not be invoked when the question is A's subsequent right to testify, his electoral right, his other rights as a citizen, to sit on a jury, to practice his profession, his right in all of said instances arising because all legal consequences of his conviction have been forever canceled, annulled, and made void, and because he has new standing and credit in all these instances; and yet, somehow, these authorities proceed to say that such conviction can be looked to and invoked and all its hurtful legal consequences be used against the accused if he thereafter is brought before the bar of justice charged with a similar offense. To merely say in words that his punishment is only affected by the commission of the new crime does not make it so and cannot.
Id.
In overruling Scrivnor , however, Judge Beauchamp aligned himself with the later editors, rejecting the view of Bishop himself. Jones , 147 S.W.2d at 510 . "Whatever might have been the force and effect of the pardon as it originated in an early date[,]" he remarked in Jones , "appears to the writer to be immaterial." Id. at 511 . But, as the earlier line of cases that Jones simply ignored undoubtedly demonstrates, the Scrivnor conception of the pardon power, mirrored in Bishop's own view rather than that of his later editors, was the established common-law view. This was the concept that the Framers would have had in mind when they fashioned Article IV, Section 11, of the Constitution of Texas in 1845, as well as our current Constitution of 1876. That early conception is anything but "immaterial." It was beyond the judicial prerogative of the Jones Court to alter the accepted meaning of this constitutional term simply in order to construe a legislative enactment to reach a desired result. See Giles , 502 S.W.2d at 784 (the original meaning of constitutional words cannot be altered by subsequent legislation); Snodgrass , 150 S.W. at 172 (same). For the Court thus to restrict the scope of "pardon" to less than its common law meaning constituted a non-executive incursion upon what had, up to that point, justifiably been regarded as a power belonging exclusively to the Executive Department. Yet that is what the Court accepts today when it resorts to the expurgated definition of the pardon power reiterated in Watkins. Majority Opinion at 574-75 n.56 (citing Watkins , 572 S.W.2d at 341 , which in turn quotes Jones , 147 S.W.2d at 511 ). We should not blithely follow Jones , as Watkins did. We ought to overrule it.
WHAT ABOUT A PARDON FOR INNOCENCE?
Even after Jones was decided in 1941, this Court seems to have recognized and distinguished a so-called "pardon for innocence" as an act of the Governor that would essentially undo a conviction in its entirety, not simply make the punishment go away. 11 For example, in Logan v. State , 448 S.W.2d 462 (Tex. Crim. App. 1969), the appellant had been convicted of the offense of possession of burglary tools under Article 1402b of the 1925 Penal Code. Under that provision, it was an offense for a person who had been convicted of a felony to possess certain implements commonly used to commit burglaries. See Acts 1963, 58th Leg., ch. 254, § 1, p. 691, eff. Aug. 11, 1963. Logan argued that he could not be convicted of this offense because he had been pardoned for his prior felony offenses. We observed that the issue was "jurisdictional in that if the pardon was predicated upon a finding by the [E]xecutive [D]epartment of this State that appellant was not guilty of the offense for which he was convicted then there would be no offense." Logan , 448 S.W.2d at 464 .
This observation proved to be obiter dictum in Logan because the Court found that Logan's pardon was not , in any event, "for innocence," and we therefore relied upon Jones to reject his argument on appeal. Id. But it strongly suggests an understanding that the Executive Department's power to pardon will at least sometimes embrace the authority to make the conviction and offense go away, even if not every pardon that the Governor grants will have that effect. See also Ex parte Smith , 548 S.W.2d 410 , 414 (Tex. Crim. App. 1977) (observing that the combined holdings of Jones and Logan means that "a pardon for any reason other than subsequent proof of innocence does not obliterate the defendant's conviction"); Runo v. State , 556 S.W.2d 808 , 809-10 (Tex. Crim. App. 1977) (in a prosecution for possession of a firearm by a felon, proof of a pardon did not make the prior conviction unavailable absent proof "that appellant's pardon was based upon the Governor's finding that appellant was innocent"). 12 We have even intimated that a so-called "pardon for innocence" might render a prior felony conviction unavailable for enhancement-of-punishment purposes, Jones notwithstanding. See Gaffney v. State , 575 S.W.2d 537 , 541 (Tex. Crim. App. 1978) (the appellant's claim that "a pardon by the Governor should prevent the use of the pardoned conviction under V.T.C.A., Penal Code, Section 12.42" was "without merit without more"). 13
THE COMMON LAW RULE REGARDING REPEALS
The Court today also finds some justification for its holding in the common law principle that, when the Legislature wholly repeals a penal provision, the presumption is that it intends for all convictions for that offense that are still pending finality on appeal to be nullified, absent a saving clause to indicate an express legislative intent that the law in effect at the time of the commission of the offense should continue to apply. See Majority Opinion at 578-80 & n.93 (citing Ex parte Mangrum , 564 S.W.2d 751 , 753-54 (Tex. Crim. App. 1978), for the proposition that "[w]hen a conviction is pending on appeal based on such conduct, the conviction should be reversed because there is no longer a crime to be prosecuted"). See also United States v. Chambers , 291 U.S. 217 , 223, 54 S.Ct. 434 , 78 L.Ed. 763 (1934) ("In case a statute is repealed or rendered inoperative, no further proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute alive for that purpose.").
Texas, we said in Mangrum , "has followed the common law rule." 564 S.W.2d at 753-54 , and cases cited there. 14 In truth, what we did in Texas was to codify the common law rule, as the Texas Supreme Court recognized as far back as 1857. Wall v. State , 18 Tex. 682 , 696-97 (1857). Until the advent of the 1974 Penal Code, every penal code in Texas between 1857 and 1973 contained a provision to the effect that, e.g. , "[t]he repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute." Article 15, V.A.P.C. (Supp. 1973). 15 My research has turned up no case in which we have ever examined whether the common law rule, as so codified in our former penal codes, conflicted with Article II, Section 1-and neither, apparently, has the Court's. 16
The Court rather confidently proclaims that the "universal common-law rule" adhered to by Maryland in 1964 "was the understanding held by our framers regarding the character and effect of a legislative repeal when our first Texas Constitution was ratified." Majority Opinion at 580. It then doubles down with the claim that, "[h]ad the case before us arisen at the time our framers drafted the Texas Constitution, it is beyond question that Appellant's conviction would have been reversed without any concern regarding the usurpation of the governor's clemency power." Id. It cites no authority, however, for these claims. Indeed, the Framers of our Constitution had nothing to say about "legislative repeal" of penal laws and what effect, if any, they might have intended such actions to have on existing criminal convictions. What the Framers were clear about was the proposition that the power of clemency in Texas rests with the Executive Department, exclusively. Whether legislative repeal after a conviction can bring about effects similar if not identical to clemency-based pardons is the question presented here. 17 Based on the language and structure of our unique Texas Constitution, I conclude that the Legislature in this case has overstepped. Only the Executive Department can forgive a crime for which a conviction has been obtained.
As an aside, I would observe that the common law rule, as codified in Texas, may well have had no bearing on this case, even if it were still the law today. Only when a penal provision was wholly repealed did the rule of retroactive nullification as to pending prosecutions apply. By statute, it has always been the case that any legislative act that merely made some change to the definition of the offense was deemed inapplicable to offenses already committed. Article 16 of the 1925 Penal Code carried forward what, in substance, appeared in all penal codes dating back to 1857:
If an offense be defined by one law and by a subsequent law the definition of the offense is changed, no such change shall take effect as to the offense already committed; but one accused of violating the first law shall be tried under that law.
Article 16, V.A.P.C. (Supp. 1973). In the instant case, the statute underlying the offense in issue was not wholly repealed; it was only amended to delete a particular manner and means of commission. Such an amendment may not have served to trigger the former codification of the common law rule in Article 15 at all. Under the former statutory scheme, any conviction for an offense as defined under the version of the penal statute at the time it was committed would arguably still stand, by operation of Article 16.
The question is rendered moot, in any event, under the current Code Construction Act, which has replaced the provisions in all prior penal codes governing the effects of a repeal. Under the Code Construction Act, even the wholesale repeal of-let alone a simple amendment to-a penal provision "does not affect ... the prior operation of the statute or any prior action taken under it [or] any violation of the statute or penalty ... or punishment incurred under the statute before its amendment or repeal[.]" TEX. GOV'T CODE § 311.031(a)(1) & (2). The common law presumption has been abrogated.
Notwithstanding the Code Construction Act, may the Legislature nevertheless enact a special saving provision, as it has done in this case, to make the repeal of a penal provision retroactively applicable to nullify convictions for conduct that was criminal at the time it was committed? I do not believe so. In my view, any legislation that would allow such a nullification-at least "after conviction," as that phrase from Article IV, Section 11(b), has been construed-would violate separation of powers under Article II, Section 1.
USURPATION OF THE PARDON POWER
In Underwood v. State , 111 Tex.Crim. 124 , 12 S.W.2d 206 (1928) (op. on reh'g), this Court once again confronted a case involving the competency of convicted felons to testify in court in a criminal case. The Legislature had amended the competency statute to provide that convicted felons could testify with respect to offenses they may have witnessed that occurred in the penitentiary. Id. at 206 ; Acts 1926, 39th Leg., 1st C. S., ch. 13, § 1, p. 20, eff. Jan. 12, 1927. The question was whether that provision could apply to restore the competency of felons whose convictions occurred before the passage of the statutory amendment. On original submission, we rejected the appellant's contention that the statute should not apply retroactively to allow the convict witnesses to testify against him at his murder trial. Underwood , 12 S.W.2d at 206 . On rehearing, however, we addressed for the first time whether that otherwise-permissible retroactive application of the amendment to the competency statute encroached upon the Governor's exclusive clemency powers. Id. at 207 . We held that the amendment did in fact violate separation of powers insofar as it applied to any witness whose conviction pre-dated the passage of the amendment. Id. at 207-08 . We said:
We have no doubt that the act [amending the witness-competency statute] could be upheld as to all persons offered as witnesses in cases comprehended by the terms of said statute, whose final convictions occurred after the passage of said act, and that in such cases the witnesses would be deemed competent; but being convinced that ... the Legislature by said act was powerless to remove such disabilities theretofore attached, we now hold that ... the Legislature exceeded its power in so far as said act ... related to the witnesses herein and those similarly situated.
Id. at 208 . See also Marshall v. State , 168 Tex.Crim. 569 , 330 S.W.2d 625 (1960) (likewise declaring a witness incompetent who was convicted of a felony prior to the 1926 amendment to the witness-competency statute, on authority of Underwood ).
Of similar import is Ex parte Miers , 124 Tex.Crim. 592 , 64 S.W.2d 778 (1933). Miers was charged, along with two cohorts, with possession of intoxicating liquor for purposes of sale. He was convicted of the offense, and his appeal was pending when the trial of one of his cohorts began. Id. at 779 . Miers was called by the State to testify at his cohort's trial, apparently incriminating himself in the process. Id. Afterwards, Miers's own conviction was affirmed on appeal. Id. He subsequently filed an application for writ of habeas corpus seeking to have his conviction set aside. Id. He relied upon a statute in the intoxicating-liquors chapter of the 1925 Penal Code that compelled witnesses to testify in such cases even though they might incriminate themselves, but that also mandated transactional immunity from prosecution for such witnesses. Id. 18 The issue was whether the appellant's own conviction should be retroactively annulled because he had satisfied the terms of the transactional immunity statute. Id. at 780 . We rejected this argument, holding that to apply the transactional immunity statute to nullify an already existing conviction would usurp the Executive Department's "power to pardon after conviction." Id. 19
Neither Underwood nor Miers discussed at any length the meaning of Article IV, Section 11(b)'s phrase, "after conviction." But in Snodgrass , the Court had already construed this phrase to mean after a guilty verdict. 150 S.W. at 173 . The issue in Snodgrass was whether the suspended sentence law then in place violated separation of powers. The Court held that, because the statutory scheme authorized the trial court to suspend a sentence that had already been imposed and eventually nullify that sentence should the defendant successfully serve out his probationary term, it was essentially a conditional pardon, which improperly invaded the executive pardoning power. Id. at 176 . 20 A short time later, the Legislature amended the statutory scheme to authorize the jury to decide whether probation was an appropriate punishment "coincident with and as a part of their verdict" assessing guilt in the unitary trial proceeding of that time, 21 instead of authorizing the trial court to suspend an already-imposed sentence, as in Snodgrass . Baker v. State , 70 Tex.Crim. 618 , 158 S.W. 998 , 1001-02 (1913). This Court did not hesitate to uphold the new scheme as consistent with separation of powers. Id. at 1002-03 . We deemed it well within the Legislature's prerogative to affix punishments in the first instance, and we held that it did not intrude upon the executive pardon power for the Legislature to provide for the assessment of probation as part of the jury's verdict , rather than after it. Id. 22
In the instant case, Appellant had already pled guilty, and his conviction was pending on appeal, at the time the Legislature acted to undo his conviction. This was no less a usurpation of the executive pardon power than what occurred in Underwood , Miers , and Snodgrass . It is true that, in Underwood and Miers , the convictions had already been affirmed on appeal when the Legislature purported to nullify them. But final appellate disposition of a conviction is not the starting point of the Governor's pardon power, as Snodgrass made clear, and the Court's dispositions in Underwood and Miers did not turn on the finality of the convictions. 23 Any usurpation by one governmental department of a power that belongs to another, " to whatever degree ," violates Article II, Section 1's proscription against one department's exercise of constitutional power properly attached to another. Armadillo Bail Bonds , 802 S.W.2d at 239 . To the extent that the saving clause at issue in this case operated to nullify a conviction that was pending on appeal, it encroached upon the Executive Department's exclusive constitutional power to grant a pardon at any time "after conviction." 24
CONCLUSION
The Ninth Court of Appeals concluded that the Legislature has "essentially pardoned" Appellant by applying the legislative amendment to his pending conviction. VanDyke v. State , 485 S.W.3d 507 , 511 (Tex. App.-Beaumont 2016). For the reasons developed in this opinion, I agree with that assessment. Consequently, I would affirm the court of appeals' judgment. Because the Court today does not, I respectfully dissent.
Footnotes
[1] When the House voted on the final version of S.B. 746, only three representatives voted against the bill. H.J. of Tex., 84th Leg., R.S. 3689 (2015) (floor vote on S.B. 746). When the Senate voted on the final version of S.B. 746, no one voted against the bill. S.J. of Tex., 84 Leg., R.S. 1817 (2015) (floor vote on S.B. 746).
[2] The State makes no argument that the savings clause in S.B. 746 violates the Separation of Powers Clause of the Texas Constitution by unduly interfering with a court's power to enter a final judgment. See Ex parte Lo , 424 S.W.3d 10 , 29 (Tex. Crim. App. 2014) (op. on reh'g) ("Entering a final judgment is a core judicial power; it falls within that realm of judicial proceedings 'so vital to the efficient functioning of a court as to be beyond legislative power.' ").
[3] Health & Safety Code § 841.003(a) provides: "A person is a sexually violent predator for the purposes of this chapter if the person: (1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence."
[4] Health & Safety Code § 841.081 provides: "If at a trial conducted under Subchapter D the judge or jury determines that the person is a sexually violent predator, the judge shall commit the person for treatment and supervision to be coordinated by the office."
[5] Appellant argued that the Health and Safety Code provisions unconstitutionally delegated unlimited authority to the OVSOM and unconditional authority to the trial court; that the provisions were vague and overbroad on their face; that OVSOM was not permitted to discharge Appellant from the program and prosecution for OVSOM's decision to discharge him is an ultra vires act violating his due process rights; Section 841.085 is an unconstitutional strict liability crime; Appellant's civil commitment order imposes more restrictive standards than permissible by law; Section 841.142 facially violates the first amendment; and the provisions violate the first amendment's overbreadth doctrine.
[6] Senate Comm. on Crim. Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S. (2015).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Act of May 21, 2015, 84 th Leg., R.S., ch. 845, 41, 2015 Tex. Gen. Laws 2700 , 2711.
[12] VanDyke v. State , 485 S.W.3d 507 , 510 (Tex. App.-Beaumont 2016).
[13] Id. at 511 .
[14] See Saldano v. State , 70 S.W.3d 873 , 891 (Tex. Crim. App. 2002) (despite agreement by the parties, we nonetheless independently examine the merits of claims).
[15] Senate Bill 746, 84th Leg., R.S. (2015).
[16] The 2015 amendments redesignated Section 841.082(a)(4) as subsection 841.082(a)(3), but the amendments did not change the substance of the provision.
[17] Whitehead v. State , 273 S.W.3d 285 , 288 (Tex. Crim. App. 2008).
[18] Id.
[19] Tamez v. State , 11 S.W.3d 198 , 203 (Tex. Crim. App. 2000) (Keller, J., dissenting); see also Parham v. Hughes, 441 U.S. 347 , 99 S.Ct. 1742 , 60 L.Ed.2d 269 (1979).
[20] Vance v. Bradley , 440 U.S. 93 , 97, 99 S.Ct. 939 , 59 L.Ed.2d 171 (1979).
[21] We do note that the Legislature's actions did not absolve sexually violent predators from all requirements of their civil commitment. Though they cannot be convicted for failing to comply with or complete their treatment program, sexually violent predators retain their status as such until a court determines that their behavioral abnormalities have changed to the extent that they are no longer likely to engage in a predatory act of sexual violence. Tex. Health & Safety Code Ann. § 841.121 (a) (West Supp. 2015). They remain subject to the Texas Civil Commitment Office's tiered program of treatment and supervision, which must include a tracking service, until a court determines they are no longer a sexually violent predator. Id. at §§ 841.083(a), 841.121(a). Under the tiered treatment program, the office may enforce disciplinary action for violations of the program's regulations and return a committed person to more restrictive settings, i.e. more restrictive housing and supervision, if deemed necessary by the person's behavior or progress to further treatment and protect the community. Id. at § 841.0834(c). Additionally, sexually violent predators are still subject to criminal punishment for violations of the other provisions in Health and Safety Code § 841.082(a).
[22] Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 41, 2015 Tex. Gen. Laws 2700 , 2711.
[23] Lundgren v. State , 434 S.W.3d 594 , 598 (Tex. Crim. App. 2014) (citing Milburn v. State , 201 S.W.3d 749 , 752 (Tex. Crim. App. 2006) ).
[24] To be clear, we decide here that Appellant's conviction is not a "final conviction" for purposes of determining the applicability of the statute at issue. Under well-established law it isn't. See Jones v. State , 711 S.W.2d 634 , 636 (Tex. Crim. App. 1986) ("The law is settled that a conviction from which an appeal has been taken is not considered to be a final conviction until the conviction is affirmed by the appellate court and that court's mandate of affirmance becomes final."). However, this aspect of our holding should not be mistaken as a suggestion that we are holding that the governor's clemency power only attaches after a mandate issues after a direct appeal. Indeed, the law is well-settled in that regard; the governor's clemency power applies at any point "after conviction" regardless of whether mandate has issued on direct appeal. Ex parte Giles , 502 S.W.2d 774 , 784 (Tex. Crim. App. 1973). Rather, our holding is that even though the clemency power can apply to a case before the conviction becomes final on appeal, this legislative amendment does not usurp or unduly interfere with that clemency power because it is a valid exercise of the Legislature's authority to make or repeal laws rather than the fundamental equivalent of a pardon. Of course, case law in both inquiries necessarily refer to the word "conviction." But determining whether the phrase "final conviction" applies to a case pending on appeal and whether clemency power applies "after conviction" are two separate and unrelated issues.
[25] Salinas v. State , 464 S.W.3d 363 , 366 (Tex. Crim. App. 2015).
[26] Ex parte Lo , 424 S.W.3d 10 , 14-15 (Tex. Crim. App. 2014).
[27] Id. at 15 .
[28] See Harold H. Bruff, Separation of Powers Under the Texas Constitution , 68 Tex. L. Rev. 1337 , 1338-40 (1990).
[29] Tex. Const. art. II, § 1.
[30] See Armadillo Bail Bonds v. State , 802 S.W.2d 237 , 239-40 (Tex. Crim. App. 1990) (comparing two constitutional provisions granting similar powers to the judicial and legislative branches and noting that determining when a violation occurs is "no simple task"). Although there is natural overlap in the duties associated with the powers granted to each branch, each branch may only exercise those powers granted to it. See Giles , 502 S.W.2d at 780 . No one branch has power over the other branches and any attempt by one branch to interfere with the powers of another is null and void. See id.
[31] Armadillo Bail Bonds , 802 S.W.2d at 239 (citing Giles , 502 S.W.2d at 780 ).
[32] See Giles , 502 S.W.2d at 786 .
[33] Armadillo Bail Bonds , 802 S.W.2d at 239 (citing Rose v. State , 752 S.W.2d 529 , 535 (Tex. Crim. App. 1987) ).
[34] State v. Williams , 938 S.W.2d 456 , 460 (Tex. Crim. App. 1997) (quoting Armadillo Bail Bonds , 802 S.W.2d at 239 ).
[35] Tex. Const. art. IV, § 11A, enacted by Acts 1935 Leg., H.J.R. No. 46, § 1, p. 1226, adopted Aug. 24, 1935. According to the "Interpretive Commentary" this amendment was ultimately passed to remove all doubt created by our decision in Snodgrass v. State , 67 Tex.Crim. 615 , 150 S.W. 162 (1912) that courts can constitutionally suspend pronouncement of sentence without usurping the pardoning power of the governor.
[36] Tex. Const. art. IV, § 11.
[37] Giles , 502 S.W.2d at 784 .
[38] See, e.g., Whan v. State, 485 S.W.2d 275 , 277 (Tex. Crim. App. 1972) (noting that the proper course of action where the Governor has commuted a death sentence to a sentence of life in prison while the case was pending on appeal was to affirm the trial court's judgment because the commutation did not affect the judgment).
[39] Ex parte Gore , 109 Tex.Crim. 244 , 4 S.W.2d 38 , 39 (1928) (denying habeas corpus relief to an inmate who sought to have this Court grant him parole after the Governor had denied him parole).
[40] Ferguson v. Wilcox , 119 Tex. 280 , 28 S.W.2d 526 , 533 (1930) (citing City of Denison v. Municipal Gas Co. , 117 Tex. 291 , 3 S.W.2d 794 , 798 (1928) ). In Ferguson , the Texas Supreme Court considered the constitutionality of a statute that would have allowed an impeached Governor to hold office again despite a constitutional prohibition contained in Article XV, Section 4 of the Texas Constitution. Ferguson , 28 S.W.2d at 534 ("The convention in excepting impeachment from the pardon power of the Governor, while at the same time providing the method and pardon in cases of treason, evidently intended that an unfaithful officer convicted of impeachment should not again be permitted to hold office in this state."); see also Tex. Const. art. XV, § 4 ("Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State."). The determination in Ferguson that the statute violated the Texas Constitution had nothing to do with the character or effect of a pardon.
[41] Ex parte Rice , 72 Tex. Crim. 587 , 596, 162 S.W. 891 (1913) ( "The Constitution of this State granting that power [clemency power] to the Governor, it is for him alone to exercise without restraint or restriction from any source, other than the sovereigns of the state who wrote and adopted the Constitution."); see also Ex parte Wolters , 64 Tex. Crim. 238 , 248, 144 S.W. 531 (1911) (noting that the Legislature is generally confined to legislative matters and "in no instance" can it act as a judicial branch of government unless such power is expressly conferred upon it by the Constitution).
[42] Ferguson , 28 S.W.2d at 532 ; Giles , 502 S.W.2d at 780 .
[43] Tex. Const. art. III, § 1.
[44] Bexar Cty. Hosp. Dist. v. Crosby , 160 Tex. 116 , 327 S.W.2d 445 , 447 (1959) ("There can be no dispute but that in this State the provisions of the Constitution serve only as a limitation on the power of the Legislature, and not as a grant of power.").
[45] Walker v. Baker , 145 Tex. 121 , 196 S.W.2d 324 , 328 (1946).
[46] Blackwell , 500 S.W.2d at 104 .
[47] Baker v. State , 70 Tex.Crim. 618 , 158 S.W. 998 , 1002 (1913) ("While the power of the Governor alone, under our Constitution, to grant pardons cannot be questioned, yet it is equally beyond question that the Legislature has the sole power to define offenses and fix the punishment to be inflicted on the offender.").
[48] Jones v. State , 141 Tex.Crim. 70 , 147 S.W.2d 508 , 511 (1941) ("In our state, as in the other states of the Union, the executive is not given appellate jurisdiction over the acts of the judicial branch of the government, and without which he can have no power to destroy its judgments and decrees.").
[49] See, e.g., Blackwell , 500 S.W.2d at 104 (invalidating statute that allowed defendants previously convicted of a drug offense to petition the trial court for resentencing); Giles , 502 S.W.2d at 786 (invalidating statute that allowed a defendant to petition the sentencing court to re-sentence him under newly enacted punishment ranges).
[50] See, e.g., Cox v. State , 90 Tex.Crim. 256 , 234 S.W. 531 (1921) (noting that a statutory amendment removing the act of possessing equipment for making intoxicating liquor from the forbidden conduct in a penal offense constitutes a repeal of the law under which the defendant was convicted).
[51] Tex. Const. art. IV, § 11.
[52] Ex parte Black , 123 Tex.Crim. 472 , 59 S.W.2d 828 , 829 (1933).
[53] Blackwell , 500 S.W.2d at 103 .
[54] Snodgrass , 150 S.W. at 166 .
[55] This would seem to be self-evident from the text of the Constitution which limits the governor's exercise of his clemency power to "after conviction or successful completion of a term of deferred adjudication community supervision[.]" Tex. Const. art. IV, § 11.
[56] See Cuellar v. State , 70 S.W.3d 815 , 836 (Tex. Crim. App. 2002) (Keasler, J., dissenting) (quoting Watkins v. State , 572 S.W.2d 339 , 341 (Tex. Crim. App. 1978) ); Jones, 147 S.W.2d at 510 ; see also Ex parte Freeman , 486 S.W.2d 556 , 557 (Tex. Crim. App. 1972) ("Even though a commutation limits and modifies the punishment assessed at the time of conviction, it has no effect on the adjudged guilt of the prisoner."); Black , 59 S.W.2d at 829 ("It [reprieve] does not and cannot defeat the ultimate execution of a judgment of the court; it merely delays it.").
[57] Snodgrass , 150 S.W. at 167 (op. on reh'g) ("What we did hold was that the Legislature had no power to confer on the trial court authority to remit the punishment after a conviction had been obtained and penalty assessed by a verdict of the jury; this power being conferred on the Governor by the Constitution, and if under the guise of 'suspension of sentence' this object was sought to be obtained, the act would be void, for the word 'suspension' could not be given such construction"); Tex. Const. Art. IV § 11A ("The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the legislature may prescribe.").
[58] 19 Tex. Ct. App. 635 , 661 (1885) (citing Ex parte Garland , 71 U.S. 333 , 380, 4 Wall. 333 , 18 L.Ed. 366 (1867) ). It is worth noting, however, that each of the three judges participating in Carr wrote separate opinions, and the Presiding Judge did not join the majority because he did not agree with all of the views expressed by the majority. Id. at 660 ("With regard to the effect and character of the pardon granted by the Governor to the witness Hester, I cannot concur in the views expressed in Judge Hurt's opinion."). The cite to Garland appears within the Presiding Judge's side opinion.
[59] 71 U.S. at 380 .
[60] The bone of contention amongst the judges in Carr appears to be on the effect of a partial or conditional pardon, not a full pardon. Compare Carr , 19 Tex. Ct. App. at 658 (Hurt, J.) ("The effect, therefore, of a pardon with a subsequent condition is the same as a full unconditional pardon until the condition is broken.") with 19 Tex. Ct. App. at 662 (White, P.J.) ("If the doctrine announced by Judge Hurt be correct, then there is absolutely no difference whatever between a full pardon and one upon a subsequent condition."). More importantly, the issue before the Court was not whether the pardon had actually removed the conviction itself, it was whether the pardon had removed the legal disabilities associated with the conviction. Id. at 663 (White, P.J.) ("I am of opinion the witness Hester was wholly incompetent to testify, because he is a convicted felon whose disabilities have not been removed; and that the court erred in permitting him to testify over objection of defendant.").
[61] Carr , 19 Tex. Ct. App. at 661 .
[62] 71 U.S. at 375-76 .
[63] Id. at 381 .
[64] See In re North , 62 F.3d 1434 , 1437 (D.C. Cir. 1994) (noting that Garland did not rest its judgment on the theory that the pardon at issue had blotted out Garland's guilt).
[65] United States v. Wilson , 32 U.S. 150 , 160, 7 Pet. 150 , 8 L.Ed. 640 (1833).
[66] Burdick v. United States , 236 U.S. 79 , 94, 35 S.Ct. 267 , 59 L.Ed. 476 (1915).
[67] Hunnicutt v. State , 18 Tex. Ct. App. 498 , 517 (1885). Hunnicutt was a decision of the Texas Court of Appeals before it became the Texas Court of Criminal Appeals.
[68] Id. at 519 (quoting 1 Bish. Crim. Law § 916 (7th ed)).
[69] Warren v. State , 127 Tex.Crim. 71 , 74 S.W.2d 1006 , 1007 (1934).
[70] Id. Notably, Judge Hawkins concurred in part and dissented in part, stating in his opinion that he would reach the same conclusion even if the pardon at issue had been a full pardon. Id. at 1008-09 (Hawkins, J., concurring in part and dissenting in part).
[71] See 147 S.W.2d at 511 .
[72] Id. at 509 .
[73] Id. (citing Scrivnor v. State , 113 Tex.Crim. 194 , 20 S.W.2d 416 (1928) (holding that the State may not use a pardoned conviction for the purpose of enhancing the penalty in a subsequent case)).
[74] Id.
[75] Id.
[76] Id. at 510 ; see also Lo , 424 S.W.3d at 29 .
[77] Jones , 147 S.W.2d at 510 .
[78] Id.
[79] See, e.g., United States v. Swift , 186 F. 1002 , 1016-17 (N.D. Ill. 1911) ("Amnesty or pardon obliterates the offense, it is true, at least to such an extent that for all legal purposes the one time offender is to be relieved in the future from all its results; but it does not obliterate the act themselves.... it does not close the judicial eye to the fact that once he had done the acts which constituted the offense [.]"); State v. Edelstein , 146 Wash. 221 , 262 P. 622 , 630-32 (1927) (examining the weight of authority regarding pardoned offenses and determining that a pardoned offense may be used for enhancement purposes); Herndon v. Commonwealth , 105 Ky. 197 , 48 S.W. 989 , 990 (1899) ("The pardon relieved the convict of the entire penalty incurred by the offense pardoned, and nothing else or more.").
[80] See Carlesi v. New York , 233 U.S. 51 , 59, 34 S.Ct. 576 , 58 L.Ed. 843 (1914) (upholding the New York Court of Appeal's decision, which held that a conviction was not obliterated by a pardon, but remained a fact in the past history of the defendant).
[81] Jones , 147 S.W.2d at 510 .
[82] Id. at 511 .
[83] Id.
[84] Id.
[85] Id. at 511-12 .
[86] Id. at 511 ("In our state, as in the other states of the Union, the executive is not given appellate jurisdiction over the acts of the judicial branch of the government, and without which he can have no power to destroy its judgments and decrees. He must take them as he finds them. In penal cases it becomes the duty of the executive branch to enforce the laws as written and interpreted. Clemency power is vested in the Governor to the extent only that he can remit fines imposed which remain uncollected and discharge the convict from further penal service. Prior to his proclamation so doing he exercises no influence on the judgment of conviction. He has no power to restore the convict to his license which may have been cancelled by reason of his conviction. He cannot set aside the divorce which the convict's spouse has obtained on the ground of such conviction. He cannot restore him in his social standing contrary to public opinion and the edicts of the social order, or societies to which he once belonged. In civil actions for libel the publisher of the story of plaintiff's conviction may prove the fact even though the full pardon has been granted.").
[87] See, e.g., Burdick , 236 U.S. at 94 , 35 S.Ct. 267 ; Carlesi , 233 U.S. at 59 , 34 S.Ct. 576 ; Wilson , 32 U.S. at 160 .
[88] See, e.g., Ex parte Perry , 483 S.W.3d 884 , 903 (Tex. Crim. App. 2016).
[89] See, e.g., Runo v. State , 556 S.W.2d 808 , 809 (Tex. Crim. App. 1977) (allowing a conviction to deny bail in a subsequent proceeding despite a pardon).
[90] See, e.g., Taylor v. State , 612 S.W.2d 566 , 571 (Tex. Crim. App. 1981) (using a pardoned conviction to deny probation).
[91] See, e.g., Gaffney v. State , 575 S.W.2d 537 , 541 (Tex. Crim. App. 1978) (permitting use of a conviction for enhancement in a later proceeding, despite a pardon).
[92] A pardon, based on actual innocence or another reason, grants an individual the right to expunction, but the pardon itself does not remove the offense from the person's criminal records. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(B) (a person is entitled to have all records and files relating to the arrest expunged if the person was convicted and subsequently pardoned on the basis of actual innocence with respect to that offense, if the applicable pardon clearly indicates on its face that it was granted on the basis of the person's actual innocence, or if the conviction is pardoned for another reason). A pardoned individual must petition the appropriate court and obtain an expunction order for an expunction of the pardoned offense to occur. See Id. at art. 55.02 § 1a (actual innocence pardons); Id. at § 2 (pardons for another reason); see also Ex parte Green , 373 S.W.3d 111 , 113 (Tex. App.-San Antonio 2012, no pet.) ("The right to expunction is a statutory privilege.").
[93] See, e.g., Williams v. State , 476 S.W.2d 307 , 309 (Tex Crim. App. 1972) ; Mendoza v. State , 460 S.W.2d 145 , 147 (Tex. Crim. App. 1970). The State argues that Mendoza and Williams are inapplicable because they were based on the savings provision contained in article 14 of the Penal Code of 1925, which has since been repealed, and they predate our decision in Giles. However, article 14 of the Penal Code of 1925 and our holdings in Mendoza and Williams were premised on the common law principle that by repealing a penal provision, the Legislature indicates that the conduct removed is no longer to be prosecuted as a crime. Ex parte Mangrum , 564 S.W.2d 751 , 753-54 (Tex. Crim. App. [panel op.] 1978). When a conviction is pending on appeal based on such conduct, the conviction should be reversed because there is no longer a crime to be prosecuted. Id. at 753 . Although we now have a general savings provision which alters this rule and provides that an amendment or repeal does not affect any violation of the statute or any penalty, forfeiture, or punishment incurred under the statute before its amendment or repeal, the Legislature is free to enact a more specific savings provision when repealing or amending a statute. Id. at 755 (referencing the general savings provision currently found at Tex. Gov't Code Ann. 311.031(a)(3) (West 2013)). When the Legislature enacts a savings provision similar to the common law principle, we will enforce it accordingly so long as it does not violate the Texas Constitution.
[94] Williams , 476 S.W.2d at 309 ; Mendoza , 460 S.W.2d at 147 .
[95] Hall v. State , 52 Tex.Crim. 195 , 106 S.W. 149 , 149 (1907).
[96] Id. at 150 .
[97] Id.
[98] Kenyon v. State , 31 Tex.Crim. 13 , 23 S.W. 191 , 191 (1892).
[99] Hall , 106 S.W. at 150 (citing Kenyon , 23 S.W. at 191 ; Chaplin v. State , 7 Tex. Ct. App. 87 (1879) ; Tuton v. State , 4 Tex. Ct. App. 472 (1878) ; Montgomery v. State , 2 Tex. Ct. App. 618 (1877) ; Hubbard v. State , 2 Tex. Ct. App. 506 (1877) ; Sheppard v. State , 1 Tex. Ct. App. 522 (1877) ; Wall v. State , 18 Tex. 682 (1857) ).
[100] See, e.g., Bell v. Maryland , 378 U.S. 226 , 230, 84 S.Ct. 1814 , 12 L.Ed.2d 822 (1964) (noting that Maryland follows "the universal common-law rule" that requires a dismissal of all proceedings after a legislature repeals a criminal statute if the proceeding had not yet reached final disposition in the highest court authorized to review it).
[101] 9 U.S. 281 , 283, 5 Cranch 281 , 3 L.Ed. 101 (1809).
[102] 500 S.W.2d at 99 .
[103] Id. at 104 .
[104] Id.
[105] 502 S.W.2d at 786 .
[106] Id.
[107] Id.
[108] We noted a similar problem with the statute at issue in Snodgrass. See Baker , 158 S.W. at 1003 (noting that one problem with the legislation at issue in Snodgrass was that it provided that the trial court "should hold another trial, hear evidence and determine whether or not he would relieve from punishment fixed by the jury and judgment of conviction").
[109] Tex. Const. art. IV, § 11 (b).
[110] Tex. Const. art. III, § 1 ; see also Baker , 158 S.W. at 1003 (upholding a statute allowing a trial court to suspend sentence because "the law is so written that it becomes a part of each article of the Code, prescribing the punishment").
[111] 502 S.W.2d at 782-83 .
[112] Id. at 782 .
[113] Id.
[114] Id.
[115] Id. at 782-83 .
[116] Id.
[117] Armadillo Bail Bonds , 802 S.W.2d at 239 .
[118] Id.
[119] Id.
[120] Id.
[121] Appellant remains subject to the Texas Civil Commitment Office's tiered program of treatment and supervision. He will remain in the civil commitment program until a court determines that he is no longer likely to engage in a predatory act of sexual violence. The Texas Civil Commitment Office determines which tier of the program, i.e. level of restrictions, Appellant will be placed in based on his behavior and the violations which gave rise to his vacated conviction.
[1] Indeed, until 1935, the clemency power resided exclusively in the Executive Department. By constitutional amendment, the Judicial Department was granted limited clemency "power, after conviction," to place criminal defendants on probation. Tex. Const. art. IV, § 11A, enacted by Acts 1935, 44th Leg., H.J.R. No. 46, § 1, p. 1226, adopted Aug. 24, 1935.
[2] For example, as already noted, since 1935 the Texas Constitution has expressly conferred a limited power of clemency upon the courts of original criminal jurisdiction, subject to the express prescriptions of the Legislature. Tex. Const. art. IV, § 11A.
[3] At the time Snodgrass was decided, the law in Texas was that "in all felony cases, sentence must follow the judgment." 150 S.W. 162 , 172 (Tex. Crim. App. 1902) (op. on reh'g). Under the current Code of Criminal Procedure, of course, this is no longer the case. See Tex. Code Crim. Proc. art. 42.01, § 1 (9) -(10), (15) -(19) (requiring that the written judgment reflect the fact that sentence was imposed and the particulars thereof). That our statutory procedure has evolved, however, cannot serve to change the meaning of the term "after conviction" for constitutional purposes.
[4] The Court also nakedly asserts that "[t]he clemency power does not allow the governor to affect the underlying conviction." Majority Opinion at 574. The Court cites no case authority at this juncture, but simply observes in the margin that "[t]his would seem to be self-evident from the text of the Constitution which limits the governor's exercise of his clemency power to 'after conviction or successful completion of a term of deferred adjudication community supervision[.]' Tex. Const. art. IV, § 11." Id. n.55. It is unclear to me in what way the fact that the Executive Department may not invoke its clemency power until "after conviction" serves self-evidently to establish that such power "does not allow the governor to affect the underlying conviction." The quoted part of the constitutional provision seems to speak to when the clemency power may be exercised (namely, after conviction, or in the absence of a conviction, after the successful completion of deferred adjudication community supervision), not how it may be exercised . How the clemency power may be exercised seems to me to be more a function of what we construe "reprieves," "commutations of punishment," and (most importantly) "pardons" (and, particularly, full pardons) to mean. Whether the clemency authority can "affect" a conviction depends upon what a pardon is.
[5] Consistent with this understanding, even on original submission in Snodgrass , we had observed while discussing the statute there at issue:
This act by its provisions provides that after a person has been legally convicted of a crime, and his sentence suspended under the provisions thereof, upon the expiration of double the time assessed as punishment by the jury, the defendant may apply to the court to have the judgment of conviction set aside, and, if it appears that he has not been convicted of any other offense, the judgment of conviction shall be set aside and annulled, thus giving the district courts the power and authority to exempt from punishment a person legally convicted of crime, and of which he has been adjudged guilty, and to which our laws affix a penalty. By the act of setting the judgment aside such person would also be restored to all the rights and privileges to which one is entitled who has never been convicted of an offense. In other words, this act of the Legislature grants to such a person an unconditional pardon, although the word "pardon" is not used therein[.]
150 S.W. at 165 (op. on orig. subm.). Thus, even on original submission, we understood "pardon" to include setting aside and nullifying the conviction.
[6] As the Court in Carr explained, there are different types of pardon. A full or absolute pardon is
one which frees the prisoner without any condition whatever. A conditional pardon is one to which a condition is annexed, performance of which is necessary to the validity of the pardon. If the pardon be conditional, the condition may be either precedent or subsequent; if precedent,-that is, if by its terms some event is to transpire before it takes effect,-its operation is deferred until the event occurs. But if the condition is subsequent, the pardon goes into operation immediately, yet becomes void whenever the condition is broken.
19 Tex. Ct. App. at 657 (quoting 1 Bish. Crim. Law, 914). Because the Court holds today that the Legislature has absolved Appellant of the full consequences of his offense, I will address the question whether that constitutes a derogation of the Executive Department's power to grant an absolute or full pardon. Whenever I refer to a pardon in the balance of this opinion, that is what I mean.
[7] The 1879 Code of Criminal Procedure regarded a convicted felon as "incompetent" to testify in a criminal prosecution unless his conviction had been "legally set aside" or he had been pardoned. Hunnicutt v. State , 18 Tex. Ct. App. 498 , 517 (1885) (quoting Article 730 of the 1879 Texas Code of Criminal Procedure).
[8] See also Bennett v. State , 24 Tex. Ct. App. 73 , 79, 5 S.W. 527 , 529 (1887) (reiterating that a pardon "blots out" the offender's "offense," but holding that, though he was not, for that reason, wholly incompetent to testify, he could still be impeached with the fact of his pardoned conviction); Sipanek v. State , 100 Tex.Crim. 489 , 272 S.W. 141 , 142 (1925) (same).
[9] To this day, no veniremember may serve on a jury in a criminal case in Texas if he has been convicted of a felony. Tex. Code Crim. Proc. arts. 35.16(a)(2) & 35.19.
[10] Article IV, Section 11, was amended in 1936 to constrain the Governor to grant pardons only upon the recommendation of the Board of Pardons and Paroles. Acts 1935, 44th Leg., S.J.R. No. 26, § 1, p. 1237, adopted Nov. 3, 1936. This limitation has no affect on the meaning of "pardon."
[11] "History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Herrera v. Collins , 506 U.S. 390 , 417, 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993). Moreover, "history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence." Id. at 415 , 113 S.Ct. 853 . When it comes to innocence, executive clemency is the "fail-safe," meant to compensate for the "unalterable fact that our judicial system, like the human beings who administer it, is fallible." Id. In this context, it makes little sense to regard the Governor's authority to grant a full pardon as ineffectual to negate the crime. Are we content to construe the pardon power simply to retract the punishment and other adverse consequences attending to the innocent convict, or should we not also construe it to remove the stigma of conviction itself?
[12] In 2011, the Legislature amended the expunction statutes to allude for the first time to an expunction of arrest records on the basis of a pardon that is granted "on the basis of actual innocence," and to provide that a district court should grant such an expunction order expeditiously. See Acts 2011, 82nd Leg., ch. 690, §§ 1 & 2, pp. 1653 & 1655, eff. Sept. 1, 2011 (amending Articles 55.01 and 55.02 of the Code of Criminal Procedure ). This suggests that the Legislature shares my view that the Governor's pardoning power may at least sometimes extend to "blotting out" the conviction and offense, justifying a concomitant "blotting out" of any underlying arrest records.
[13] Also in 2011, Article IV, Section 11(b), of the Texas Constitution was amended to expressly authorize the Governor to grant clemency to an offender "after ... successful completion of a term of deferred adjudication community supervision[.]" Acts 2011, 82nd Leg., S.J.R. 9, § 1, p. 5080, adopted Nov. 8, 2011, eff. Dec. 5, 2011. The caption that accompanies the Senate Joint Resolution proposing this constitutional amendment indicates that the intent was to authorize the Governor "to grant a pardon" under these circumstances. Id. The pardon contemplated by the Senate cannot possibly have been a pardon pertaining to punishment alone, of course, since one who successfully serves out a term of deferred adjudication community supervision will never be convicted of the offense, let alone punished for it. E.g. , Hammack v. State , 963 S.W.2d 199 , 200 (Tex. App.-Austin 1998, no pet.) (observing that there is no judgment in a case of deferred adjudication because there is no conviction, and no punishment is assessed either). Nothing in the 2011 amendment suggests that the circumstances of such a pardon would be limited to "innocence." Yet it is evident that the Governor's power to pardon in these circumstance can only mean the power to make the offense itself disappear in legal contemplation, since there is neither a conviction nor even any punishment to nullify.
[14] See Greer v. State , 22 Tex. 588 , 590 (1858) ; Sheppard v. State , 1 Tex. Ct. App. 522 , 523-25 (1877) ; Hubbard v. State , 2 Tex. Ct. App. 506 , 507 (1877) ; Montgomery v. State , 2 Tex. Ct. App. 618 , 620 (1877) ; Tuton v. State , 4 Tex. Ct. App. 472 , 473 (1878) ; Kenyon v. State , 31 Tex. Crim. 13 , 13-14, 23 S.W. 191 (1892) ; Hall v. State , 52 Tex.Crim. 195 , 106 S.W. 149 , 150 (1907) ; Mendoza v. State , 460 S.W.2d 145 , 146 (Tex. Crim. App. 1970) ; Waffer v. State , 460 S.W.2d 147 , 148 (Tex. Crim. App. 1970).
[15] No such provision was carried over into the 1973 Penal Code. Instead, the Code Construction Act, which applies to the 1973 Penal Code, seems to have abrogated the common law principle. The general saving provision in the Code Construction Act provides that "repeal of a statute does not affect ... the prior operation of the statute or any action taken under it ... [or] any violation of the statute or any penalty ... or punishment incurred under the statute before its ... repeal[.]" Tex. Gov't Code § 311.031(a)(1) & (3), applicable to the 1973 Penal Code under Tex. Gov't Code § 311.002(1). Thus, it is doubtful that Texas still embraced the common law rule by 1978, when Mangrum was decided. More to the point in this case, these provisions of the Code Construction Act also apply to Chapter 841 of the Texas Health and Safety Code, added by subsequent amendment to the Health and Safety Code, which was itself enacted in by the 71st Legislature in 1989. Acts 1989, 71st Leg., ch. 678, § 1, p. 2230, eff. Sept. 1, 1989. See Tex. Gov't Code § 311.002(2) (Code Construction Act applies to "each amendment [or] repeal ... of a code or code provision by the 60th or a subsequent legislature").
[16] The Court cites Cox v. State , 90 Tex.Crim. 256 , 234 S.W. 531 (1921), as inferential support for the proposition that, "when amendments to penal provisions invalidate an underlying conviction, the Legislature has validly exercised its power to determine criminal conduct and it has not usurped governor's power to grant clemency." Majority Opinion at 573& n.50. It is true that Cox represents an application of the common law rule, as codified by Article 16 of the 1911 Penal Code. Id. But Cox did not address whether application of that rule encroaches upon the executive prerogative to grant clemency, and I have found no other case until today that has done so. Whether "the Legislature has validly exercised its power ... and ... has not usurped the governor's" has remained an open question. What I have found, as described under the next subheading of this opinion, are cases that make clear that the executive clemency power reaches the conviction itself. Indeed, that conclusion was so obvious to the Court in 1895 that it considered it to be "a work of supererogation" even to have to discuss it. Easterwood v. State , 34 Tex.Crim. 400 , 31 S.W. 294 , 296 (1895). These cases convince me that, at the time our Constitution was drafted, the Framers understood the pardon power to reach the conviction itself. And it is axiomatic that the Constitution trumps any common law principle that may conflict with it.
[17] I do not take issue with the Court's view that a pardon cannot undo a historical fact. See Majority Opinion at 576("[A] full pardon only removes the legal consequences of the felony conviction, not the conviction itself."). That a defendant has been pardoned does not and cannot change the brute historical fact that he committed an offense and that he was subsequently convicted for its commission. But the Court seems to suggest that the Legislature has the power to do exactly that. See Majority Opinion at 581("These are not problems in the present case because the Legislature has determined that the underlying conduct is not a crime and therefore the Appellant is not guilty of criminal conduct warranting a conviction."). The subsequent legislative repeal of a penal statute does not alter the fact that, at one point in time, the statute proscribed certain conduct and that the defendant, while that statute was in effect, violated its terms. In fact, the whole point of a retroactive repeal of a penal statute is forgiveness. See Majority Opinion at 581("[T]he ultimate effect of the amendments removes the consequences of a conviction[.]"). Without the power to revise history, how could it be otherwise? And, understanding that fact, it is therefore indisputable that what the Legislature has done here is to attempt an action that, under our Texas Constitution, only the Executive Department has the power to accomplish. It has, not by virtue of changing brute history, but by exercising the power of the sovereign state, eliminated the effect of a conviction in legal contemplation.
[18] Article 694 of the 1925 Penal Code read:
No person shall be excused from testifying against persons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony.
V.A.P.C. art. 694 (1925).
[19] "It is observed that the power to pardon granted to the Governor is to pardon after conviction, and that the Legislature is without authority to give to others the power to pardon after conviction." Miers v. State , 124 Tex.Crim. 592 , 64 S.W.2d 778 , 780 (1933).
[20] The issue in Snodgrass -whether the Legislature can authorize the Judiciary to impose a form of probation after a jury verdict of guilty without encroaching on the Executive's domain-was rendered moot by the addition of Article IV, Section 11A to the Texas Constitution. See notes 1 & 2, ante. This does not otherwise affect the authoritative value of Snodgrass with respect to its interpretation and application of Article IV, Section 11(b).
[21] Only with the 1965 Code of Criminal Procedure did juries in Texas begin to assess punishment in the second phase of a bifurcated proceeding. Sims v. State , 273 S.W.3d 291 , 293-94 (Tex. Crim. App. 2008) (citing Brumfield v. State , 445 S.W.2d 732 , 737-38 (Tex. Crim. App. 1969) ).
[22] See Ivey v. State , 277 S.W.3d 43 , 48 n.33 (Tex. Crim. App. 2009) (discussing the interplay between our opinions in Snodgrass and Baker ).
[23] In McNew v. State , 608 S.W.2d 166 (Tex. Crim. App. 1978), the Court revisited the question of what "after conviction" means, this time in the context of deciding the constitutionality of the new deferred adjudication statute under Article IV, Section 11A. By this time, criminal trials had become bifurcated. We cited a number of cases construing the word "conviction" for statutory purposes, including a pair of cases holding that a conviction "is an adjudication of guilt plus an assessment of punishment." Id. at 171 (citing Woods v. State , 532 S.W.2d 608 (Tex. Crim. App. 1976), and Faurie v. State , 528 S.W.2d 263 (Tex. Crim. App. 1975) ). But we did not explicitly hold that "after conviction" meant after a finding of guilt and an assessment of punishment , even for purposes of Article IV, Section 11A, much less for purposes of Article IV, Section 11. Instead, we held that, at the very least, "conviction" " always involves an adjudication of guilt. " Id. at 172. And, because there is no adjudication of guilt that precedes deferred adjudication probation, such probation is not assessed "after conviction" for purposes of Article IV, Section 11A. Id. Then, on rehearing, we added that it was well within the legislative prerogative to provide for an assessment of probation before conviction. Id. at 176 (citing Baker v. State , 70 Tex.Crim. 618 , 158 S.W. 998 (Tex. Crim. App. 1913) ). It is unclear whether our discussion of the phrase "after conviction" in McNew , for purposes of Article IV, Section 11A, would (or should, or even could) have any bearing on our construction of "after conviction" in Snodgrass , for purposes of Article IV, Section 11. It is doubtful that McNew ought to be read to extend the point at which "after conviction" may be said to have commenced under Article IV, Section 11, since the Legislature may not, by statute, alter the meaning of a constitutional term. Ex parte Giles , 502 S.W.2d 774 , 784 (Tex. Crim. App. 1974). But even if we did read McNew to alter Snodgrass 's understanding of "after conviction," it would not affect the bottom line in this case. By the time of the legislative enactment at issue here, Appellant had been found guilty, his punishment has been assessed, and his conviction had been reduced to a written judgment, which was pending on appeal.
[24] The Court seems to glean some amorphous support from the fact that the Governor signed the legislation at issue in this case. See Majority Opinion at 583 ("Both our Legislature and our governor have decided that a sexually violent predator's failure to comply with his sex offender treatment program as part of his civil commitment should be resolved through the civil commitment program rather than give rise to a new criminal conviction."). It is true that the Governor has a constitutionally conferred role to play in approving or disapproving the acts of the Legislature. Tex. Const. art. IV, § 14. We should not confuse his exercise of this quasi-legislative function with an exercise of his jealously-guarded, purely-executive authority to pardon, which he simply cannot choose to delegate consistent with principles of separation of powers. Cf. Ex parte Perry , 483 S.W.3d 884 , 901 (Tex. Crim. App. 2016) ("[T]he governor cannot by agreement, on his own or through legislation, limit his veto power in any manner that is not provided in the Texas Constitution.").
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