Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS ATTORNEY GENERAL
H:morable Abner L. Lewis Member, Board of Pardoas and Paroles Austria, Texas
Dear Sir:
Opinion No. 0-7367 Be: Whether the Proclamations issued by the Governor of Texas are conatdared under the laws of Texas to be full pardoas of the crime committed or merely a scomulation of the sentence and fine.
We have your letter of August 21, 1946, eachusing a file from the naturalisation Division of the U. S. Department of Justice, El Paso, Texas, in which you say: "In view of the fact that the request of Mr. Wilmoth, District Director, on its for a legal opinion, we do not dare to assume the responsibility of answering his request. We, therefore, submit the same to you for an opinion in response to the inquiry."
Attached to the file you enclosed a letter from Mr. O. C. Wilmoth, of August 19, 1946, reading as follows: "One Epigmando Eduardo Porras is an applioat for naturalisation, and in connection with the investigation conducted in his case, it was ascertained that he was convieted of the crime of aggravated assault in the El Paso County Court at law on September 25, 1936, at which time he was sontebped to imprisonment in the county jail for a term of ninety (90) days, and to pay a fine of $500,00, and court costs. "There are transmitted herewith certified copies of the Complaint, Information, Mandate and original Judgment in this case, together with certified copies of the Proclamations by the Governor of Texas, dated April 8, 1937, and 'arch 15, 1944.
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Nonorable Abner I. Lovie - Pane 2
"It will be greatly appreslated if you vill furaleh this effige with an opialon as to whether the Proelamations herewith are considered under the Texas lave to be full pardoas of the orime comilted or merely omanutation of the seatemee and fime?*
In Texas, oriminal offenses are of two clazes: felonies or misdemonors. An offense which may (not mast) be punlshable by death or by roufimment in the penitentiary is a felony; overy other offense is a misdemenor. Art. 44, Peal Code.
Art. 1147, of the Penal Code, definee the offense of aggravated asanult, and the saseoeding Article preseribe: the' pualshment, which is a fine, imprisonment in jail, or both fine and jail seatence; hasce the offense of aggrated asanult is a misdemenor.
Aestion 2, Art. XVI, of our State Constitution provides: "Lave shall be made to exelude from office service on juries, and from the right of suffrage, those who may have been, or shall hereafter be con- visted of bribery, perjury, forgery, or other high orimes.
Aestion 11, Art. IV, of our Constitut1on, as anended in 1936, contaias the following provisiou: "In all oriminal cases, except treason and impeahment, the Governor shall have power, after conviction, on the written signed recomendation and advice of the Board of Pardoas and Parolea, or a majorty thereof, to grant reprlaves and commutations of pumishmeat and pardoas; and under such rules as the legislature may preseribe, and upon the written recommendation and advice of a majortty of the Board of Pardoas and Parolea, he shall have the power to remit fines and forfeitures.
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Honevable Abner L. Lewis - Page 3
In Texas a persoa onavleted of the arine of aggraved assault, a miedemaenor, suffers ao less of eivll pights or privilages, and is taxed with as penalty other than the jall seatence or fise, or both, and ceart costs. Hense, when the tvo Governors of Texes respectivelly pardoned the jall seatenoe and remitted the remainder of the fises, nothing more remilned to be done under our lav to relieve Porras of "the consequemess of eonvletion," for in such a case, a full or uneaditional pardon would not be required to restere his elvil pights because such pights were not lost by his conviction.
In his Proclamation of April 8, 1937, on the basis of a recommendation for elemenay by the Board of Pardons and Paroles of that date - clemenay being urged on the grounds that his five motherless children urgenily needed his support - and on the recommendation of Attornays Tom Lea and Robert L. Holliday, of the El Paso bar, Governor James V. Allred granted "unto the said R. E. Porras a Full Pardon for the Hineiy Day Jall Tere to which he vas seatenced in the County Court of El Paso County, Texas.
Governor Coke stevenon, in his Proclamation of March 15, 1944, seven years after Governor Allred's Pardon, likewise on the basis of a recomenadation by the Board of Pardoas and Paroles, and on the statement of Attornay Tom Lea, of the El Paso bar, that the "subjest's conduct has been completely satisfactory and has recommended that his fise be remitted, "also granted "unto the said E. E. Porras, a Remission of the Remainder of His Fines, exsept costs of court."
We have carefully examined each of the aforementioned Proclamations, and have coneluded that Governor Allred, in his Pardon Proclamation remitted only a portion of the punishment, the jail seatence of 20 days, and hence, issued ouly a partial pardon as to the whole punishment inflicted by the judgment but a full pardon as to the jail seatence. He did not comnute the punishment or seatence to a lesser one, nor did he modify it or aubstitute another, nor attach thereto any condition precedent or subsequent.
And we have further coneluded that Governor Coke stevenson, in his Pardon Proclamation, remitted ouly the remainder of the fines - a part of the pumishment - and hence, ouly a partial pardon as to the whole punishment but a full pardon as to the remainder of the fines. There vas no comutation of punishment
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Rororable Abner L. Levis - Page 4
here, ao modifization of aubstitution, nor oven a condition preoedent of subsequent. The Governor did not predicate the offeot or validity of his pardon upon the contingenoy of the defendant's payiag the oourt eoste. Be anqualifledly remitted the romalader of his "fines."
In viev of the foregoing, it is our opinion that the offeot of the two Proclamations, considered together, constitute a full or unconditional Pardon to Porras for the offeneo oomitted, other than the oourt eoste adjudged against him.
We are aending the file back to you 1a order that you may return it to Mr. Wllmoth, as he requented.
JLW1ad Rnol.
Youre very truly
AYTORNEY GENEAL OF TEIAS
John L. Wroe Assistant