Untitled Texas Attorney General Opinion
GA-1000
| Tex. Att'y Gen. | Jul 2, 2013Background
- Article 42.12 § 15(h) (added by HB 2649, 2011) provides that inmates in state-jail-felony facilities do not earn good conduct time but may receive "diligent participation" credit for participating in educational, vocational, treatment, or work programs.
- Subsection 15(h)(6) authorizes the sentencing judge, based on TDCJ report, to credit days served while the inmate diligently participated, up to 1/5 (20%) of the original required term.
- The question presented: whether § 15(h)(6) violates Texas Constitution art. II § 1 (separation of powers) or art. IV § 11 (exclusive gubernatorial clemency/commutation power).
- Commutation is defined by the Court of Criminal Appeals as reducing an assessed punishment; § 15(h)(6) effectively shortens prison time and thus operates as a form of commutation.
- Distinction in prior law: commutation as a discretionary clemency gift belongs to the Governor; commutation earned by good conduct may be authorized by statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 15(h)(6) impermissibly exercises executive clemency (art. IV § 11) | The statutory ability to reduce required confinement is a commutation reserved to the Governor/Board | The statute grants credit only after the defendant "diligently" earns it; it is earned commutation, not a clemency gift | Likely constitutional: earned commutation distinguished from clemency gift; not reserved executive power |
| Whether § 15(h)(6) violates separation of powers (art. II § 1) | Allowing judges to shorten sentences encroaches on executive clemency power | Judicial awarding is conditioned on earned participation and thus does not improperly usurp executive clemency | Likely no separation-of-powers violation; statute does not interfere with expressly granted executive powers |
Key Cases Cited
- State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex. Crim. App. 1973) (discusses limits on legislative/judicial exercise of executive clemency and distinguishes legislatively conferred reductions)
- Ex Parte Anderson, 192 S.W.2d 280 (Tex. Crim. App. 1946) (upholds statute authorizing commutation earned by good conduct)
- Snodgrass v. State, 150 S.W. 162 (Tex. Crim. App. 1912) (stresses exclusive gubernatorial clemency power cannot be exercised by other branches)