Ex Parte Black

• Decision Date: 15 March 1933
• Docket Number: No. 15728.,15728.
• Citation: 59 S.W.2d 828
• Parties: Ex parte BLACK.
• Court: Texas Court of Criminal Appeals

59 S.W.2d 828

Ex parte BLACK.

No. 15728.

Court of Criminal Appeals of Texas.

March 15, 1933.

Rehearing Denied April 26, 1933.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Application for writ of habeas corpus by Mrs. David Black directed to the sheriff of Wichita county. The application was denied, and the applicant appeals.

Affirmed.

Taylor, Muse & Taylor, of Wichita Falls, for appellant.

Sam B. Spence, Dist. Atty., and Geo. W. Anderson, Asst. Dist. Atty., both of Wichita Falls, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The relator was convicted in the district court of Wichita county, in January, 1931, of a misdemeanor theft with a penalty of confinement in the county jail and a fine of $50.

There was an appeal which was concluded against the appellant on June 1, 1932 [(Tex. Cr. App.) 50 S.W.(2d) 299]. On that day the Governor of the state, upon certain declarations involving the health of the relator which were recited in the preamble, issued the following proclamation:

"Now, therefore, I, R. S. Sterling, Governor of the State of Texas, by virtue of the authority vested in me under the Constitution and laws of this State, for the reasons stated above and now on file in the office of the Secretary of State, do hereby grant unto the said Mrs. David Black a ninety day furlough (effective June 29, 1932) for the above mentioned reasons. It is provided that she shall maintain exemplary conduct.

"In testimony whereof, I have hereunto signed my name officially and caused the Seal of State to be impressed hereon at Austin, this the 29th day of June, A. D. 1932.

                                       "R. S. Sterling
                                     "Governor of Texas."
                

On the 27th day of September, 1932, a "furlough" in like terms as that above quoted was renewed and extended to the expiration date of October 29, 1932. In each of the proclamations it is stated that the "furlough" was issued upon the recommendation of a physician, stating in substance that confinement in prison might impair the health of the relator. At the expiration time set forth in the second furlough the relator was arrested and held in custody by the sheriff.

An application for a writ of habeas corpus was presented and denied and perfected to this court.

The relator contends that the proclamation of the Governor was in fact a "parole," though described as a "furlough," and that the effect of the proclamation was to terminate the right of the state to imprison the relator.

The sole power of granting clemency is vested in the Governor of the state in article 4, § 11, of the Constitution, in the following language: "In all criminal cases, except treason and impeachment, he shall have power, after conviction, to grant reprieves, commutations of punishment, and pardons; and, under such rules as the legislature may prescribe, he shall have power to remit fines and forfeitures."

The term "parole" in our law, so far as it relates to convicts, is found in the Civil Statutes governing the penitentiary authorities, and under Acts 41st Leg., 1st Called Sess., c. 45, as amended (Vernon's Ann. Civ. St. art. 6203) is but a regulation of the Legislature permitting the prison authorities to reward convicts for obedience by extending to them unusual privileges. In its legal aspect, the parole law has no relation to the power conferred upon the Governor by the Constitution. The authority of the Governor rests in the declaration quoted above from article 4, § 11, Const. of Texas. See Ex parte Redwine, 91 Tex. Cr. R. 83, 236 S. W. 96.

We are in agreement with the relator to the effect that it is the substance of the proclamation of the Governor and not the name by which it is designated that controls its effect. The elements of a statutory parole are obviously not embraced in nor a part of the proclamation, which applies to prisoners convicted of felonies, after they reach the penitentiary, and seems not applicable to misdemeanors.

In the present instance, the effect of the proclamation of the Governor was to postpone the date upon which the relator should begin her sentence. Manifestly, it was not intended to and did not have the effect of relieving her of the sentence, but simply to postpone its execution. During the time elapsing between the date of the executive proclamation and the date fixed for the beginning of the relator's imprisonment, she was not restrained of...