This is а suit for alleged wrongful imprisonment under the provisions of Article 1176a, Vernon’s Ann.Penal Code. Appellant, Willie Gilbert, brought suit against The State of Texas seeking compensation for an alleged wrongful imprisonment in the Texas Department of Corrections fоr approximately fourteen years.
The appellant was convicted of murder with malice in 1953 in Cause No. 68267 in Criminal District Court Nо. 3 of Harris County, Texas. He was found guilty and sentenced by the trial judge to a term of 99 years. The judgment of conviction was affirmed on appeal. See Gilbert v. State,
No pardon or proclamation has been issued by the Governor of Texas to appellant.
The case was tried without a jury, a jury having been waived, and after consideration of the stipulations, the pleadings, the evidence and argument of counsel the trial court denied appellant relief and entered judgment for The State of Texas as a matter of law, because appellant had not received a pardon as required by Section 2 of Article 1176a, such as would entitle him to claim compensation under said article. From the judgment of thе trial court appellant, Willie Gilbert, has perfected his appeal.
Appellant contends that no convictiоn exists against him for which he can obtain a pardon, and that the dismissal of the indictment against him and the order releasing him from custody is effective under the statute in the place of the required full pardon.
Prior to the amendment of the Texas Constitution in 1956, an action could not be maintained against the State of Texas for damages or aid and compensation upon grounds оf wrongful conviction or imprisonment.
In 1956, the Constitution was amended by the adoption of Section 51-c to Article III, which reads:
“The Lеgislature may grant aid and compensation to any person who has heretofore paid a fine or served a sentence in prison, or who may hereafter pay a fine or serve a sentence in prison, under the laws of this State for an offense for which he or she is not guilty, under such regulations and limitations as the Legislature may deem expedient.”
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This constitutional amеndment was held not self-enacting in State v. Clements,
“Sec. 2. A persоn is entitled to compensation provided by this Act:
(a) if he has served, in whole or in part, a sentence in prison under the laws оf this State; and
(b) if he pleaded ‘not guilty’ to the charge for which he was convicted and which led to the imprisonment; and
(c) if he is not guilty of the crime for which he was sentenced; and
(d) if he has received a full pardon for the crime and punishment for which he wаs sentenced.”
The power to grant pardons in criminal cases is vested solely in the Governor by Article IV, Section 11, of the Cоnstitution of Texas, which provides that the Governor can exercise such power only upon the written recommendation and advice of the Board of Pardons and Paroles. See also Art. 48.01, Vernon’s Ann. Code of Criminal Procedure. With full knowledge of the exclusive power in the Governor to grant unconditional pardons, the Legislature provided in Section 5 of Art. 1176a that the pardon issued by the Governor is admissible as evidence in a suit brought by a claimant under the Act. State v. Vargas,
Rather than seeking release through the available procedures with the Board of Pardons and Paroles, appellant sought and gained relief by way of habeas corpus in the federal judiciary. Having elected relief through the federal court, appellant cannot now complain that he is unable to secure a pardon where he has, in effect, waived such pardon as contemplated by the Texas statute on the subject. It is clear that the Act was not intended to benefit those persons who hаve gained release by way of habeas corpus, and there is no legal bar to further prosecution- for the offense charged. Moreover, the judgment of conviction of appellant is not necessarily rendered void by the granting of habeas corpus. When one who is held in custody pursuant to the judgment of a state and who seeks a writ of habeas corpus, he аsserts a right to relief against his custodian, and not against the state. Bohm v. Alaska,
In the absence of a constitutional or statutory provision therefor, the State is ordinarily not liable for the torts of its officers or agents. See 52 Tex.Jur.2d, Sec. 50, p. 761. Legislative grants of rights or privileges must be construed strictly in favor of the State on grounds of рublic policy, and whatever is not unequivocally granted in clear and explicit terms is withheld. Any ambiguity or obscurity in the terms of the statute must operate in favor of the State. Rose v. Governor,
The Legislature having required that a claimant receive a full рardon for the crime and punishment for which he was sentenced, and no pardon having been shown, we affirm the judgment of the trial court. We cannot extend the clear meaning of the statute by implication.
Affirmed.