2010 Texas Attorney General Reports and Opinions 1 (2010)

handle is hein.sag/sagtx2010 and id is 1 raw text is: ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 7, 2010
The Honorable Rodney Ellis                     Opinion No. GA-0754
Chair, Committee on Government Organization
Texas State Senate                             Re: Authority of the Governor to grant a
Post Office Box 12068                          posthumous pardon (RQ-0810-GA)
Austin, Texas 78711-2068
Dear Senator Ellis:
You ask about the power of the Governor to grant posthumous pardons and related questions
regarding the binding authority of attorney general opinions, the legal procedures for challenging a
pardon, and the authority of the Board of Pardons and Paroles (the Board).' Based on a previous
attorney general opinion, you tell us the Governor believes that he cannot grant a posthumous pardon
without a constitutional amendment. Request Letter at 1-2. You therefore ask about his authority
to do so.
The Texas Constitution authorizes the Governor to issue pardons in specific circumstances:
In all criminal cases, except treason and impeachment, the
Governor shall have power, after conviction, 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 ....
TEx. CONST. art. IV,  11(b); see also TEX. CODE CRIM. PROC. ANN. art. 48.01 (Vernon 2006).2
Pursuant to this provision, Texas courts have stated that [t]he Constitution ofthis state granting [the
pardon] 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. Exparte
Rice, 162 S.W. 891, 900 (Tex. Crim. App. 1913).
'Request Letter at 4 (available at http://www.texasattorneygeneral.gov).
2Article 48.01 of the Code of Criminal Procedure mirrors the language in article IV, section 11(b) of the Texas
Constitution: In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction,
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. . . . TEX. CODE CRIM. PROC. ANN. art. 48.01 (Vernon 2006).

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