Ex parte Lefors, 29016

• Decision Date: 01 May 1957
• Docket Number: No. 29016,29016
• Citation: 165 Tex.Crim. 51,303 S.W.2d 394
• Parties: Ex parte Charles Melton LEFORS.
• Court: Texas Court of Criminal Appeals

Page 394

303 S.W.2d 394

165 Tex.Crim. 51

Ex parte Charles Melton LEFORS.

No. 29016.

Court of Criminal Appeals of Texas.

May 1, 1957.

Rehearing Denied June 12, 1957.

Charles W. Tessmer, Dallas, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Relator applies for writ of habeas corpus alleging that he is unlawfully restrained of his liberty by the Sheriff of Dallas County, Texas. The application was set for hearing upon the question of whether the writ should issue.

The question raised is the construction of Proclamation No. 56-2335, dated December 27, 1956, which recites that relator was convicted of 'Theft and Repetition' in the District Court of Jefferson County, Texas, on January 18, 1954 and sentenced to a term of ten years in the penitentiary; that 'upon recommendation of the Board of Pardons and Paroles (records of which are on file in the Office of the Secretary of State), On December 22, 1956 the Board of Pardons and Paroles recommended the Commutation of the ten (10) year sentence to time served. Now, therefore, I, Allan Shivers, Governor of the State of Texas, by virtue of the authority vested in me under the Constitution and the laws of this State, do hereby grant unto--a conditional pardon, to Dallas County, Conditioned upon his conducting himself in all things in an exemplary manner; and conditioned further that he is hereby paroled to the Dallas County Parole Board to report immediately to Captain Walter C. Wolfe, 1707 Federal Street, Dallas 1, Texas, to whom he will be held accountable for his actions * * *.'

Other conditions of the proclamation granting executive clemency were that if relator failed to comply with the terms thereof, one being that he remain 'in the place to which he has been paroled,' or for any other reason the Governor deemed sufficient, 'this pardon shall be and is subject to revocation at the Governor's descretion, * * *.'

It is shown that five days before the date of the proclamation relator was released from the penitentiary, the certificate of the Prison Authorities reciting that the release was 'by virtue of a proclamation of the Governor herewith No. ___ Telephone _____ dated 12-22-56 granting the said convict a conditional pardon.'

Relator signed an instrument at the time of his release reciting that 'in addition to any special conditions of my conditional release' among other things he agreed to report to his parole supervisor; to make monthly reports to said supervisor '* * * until my final release'; and agreed that he would not leave the county to which he had been released without written consent.

The agreement also recites: '7. I understand that I will not be considered discharged until I am presented with my final discharge certificate issued by the Texas Prison System, and will continue to report to my parole advisor until the discharge certificate is received by me. * * * I further understand that the continuation of my clemency depends entirely upon my conduct * * * I am also fully aware that, for reasons deemed sufficient, my clemency may be amended or revoked at any time, and that should I fail in my duty and violate any laws or any rules hereinbefore set forth, or hereinafter imposed upon me, I am subject to being sent back to prison to serve the remainder of my sentence.'

Following relator's arrest in Big Spring, Texas, and upon receipt of information from the Dallas County Parole Board, the Board of Pardons and Paroles recommended revocation of 'the conditional pardon granted this subject on 12-27-56 under proclamation Number 56-2335.'

On February 28, 1957, Hon. Price Daniel, Governor of Texas, issued Proclamation No. 27-1437 reciting relator's conviction and the granting of conditional pardon, and further reciting the violation of the clemency granted 'as is evidenced by a report of the Dallas County Parole Board which states that subject is on a $1,000.00 peace bond after leaving Dallas County with his children without permission. He is also being treated in a mental hospital at this time, and has failed to fulfill the terms and conditions of this clemency and is not worthy of the trust and confidence placed in him.'

Governor Daniel's proclamation revoked 'the conditional pardon granted by the said Proclamation No. 56-2335', and ordered relator's return to and confinement in the penitentiary to serve the sentence imposed, and relator is in custody awaiting return to the penitentiary pursuant to the revocation proclamation.

The clemency proclamation signed by Governor Shivers, as shown therein, was issued upon the recommendation of the Board of Pardons and Paroles that his sentence be commuted from ten years to time served.

To sustain relator's contention that he is entitled to discharge from custody, the proclamation signed by Governor Shivers must be construed to be a commutation of sentence from ten years to the time served, in which event the conditions recited in the proclamation and the agreement signed by relator at the time of his release from the penitentiary would be void and of no effect.

Commutation of sentence means the change of the punishment assessed to a less severe one. It differs from a pardon in that it may be imposed without the consent of the convict or against his will.

Pardons and conditional pardons are acts of grace, a pardon exempting the individual on whom it is bestowed from the punishment that has been sassessed against him by the court, and a conditional pardon exempting him from such punishment upon the conditions therein provided. A pardon must be accepted in order to be effective.

Since the year 1936, under the provisions of the Constitution of Texas, Art. IV, Sec. 11, Vernon's Ann.St., the power to grant commutation of sentence and pardons is vested in the Governor to be granted 'on the written signed recommendation and advice of the Board of Pardons and Paroles.' The same section of the Constitution provides that the Governor shall have the power to revoke 'paroles and conditional pardons', no recommendation of the Board of Pardons and Paroles being required.

A commutation of punishment is not equivalent to a full pardon, nor does the release of a prisoner on parole amount to a commutation.

A parole is classified as a conditional pardon. Ex parte Sparks, 90 Tex.Cr.R. 190, 234 S.W. 393; Ex parte Nelson, 84 Tex.Cr.R. 570, 209 S.W. 148.

Yet a parole does not possess the finality attached to a pardon, but is a release from imprisonment on specified conditions to be observed, the sentence remaining in effect during the liberty thus granted. 31 Tex.Jur. p. 1258; Argon v. State, 123 Tex.Cr.R. 151, 58 S.W.2d 108.

In Ex parte Redwine, 91 Tex.Cr.R. 83, 236 S.W. 96, 98, this Court said 'the conclusion seems universal that, by whatever name the grant of release may be called, its exercise by the authority clothed by the Constitution with such power, if conditional, must be construed by all parties affected according to said conditions.'

Relator accepted release from the penitentiary upon condition.

The substance of the proclamation and not the name by which it is designated controls its effect. Ex parte Black, 123 Tex.Cr.R. 472, 59 S.W.2d 828.

The elements of a commutation of sentence are not embraced in the proclamation and manifestly it was not the intention of Governor Shivers to commute relator's sentence to time served, thereby entitling him to unconditional discharge, but to pardon or parole him conditionally.

The commutation recommended by the Board of Pardons and Paroles was a form of clemency greater than a conditional parole. Neither removes the disabilities arising from the conviction. Commutation of sentence to the time served would have entitled relator to unconditional release; whereas, parole would give only conditional liberty, during which time the sentence would remain in effect.

Two opinions by the Supreme Court of Kansas are cited by relator.

In Jones v. Morrow, 154 Kan. 589, 121 P.2d 219, a convict serving a ten year sentence in Louisiana, without his consent, was 'reprieved' to serve a five year concurrent Federal sentence, conditioned that if released before the expiration of the Louisiana sentence he would be returned to that state to serve out his sentence.

Pointing out that Jones had agreed to perform no conditions with respect to his release, and had violated no agreement; that it was not contended that the 'so called reprieve' constituted a pardon, and that the order was made entirely without regard to the wishes, consent or agreement of Jones, extradition was refused, and the 'so called reprieve' construed to be a commutation of sentence.

In re Charles, 115 Kan. 323, 222 P. 606, 607, also by the Supreme Court of Kansas, construed instruments releasing prisoners confined in the Kansas State Penitentiary in order that they might enlist in the Army of the United States for service in World War One. The instruments were held to be ambiguous and were construed to be commutations rather than conditional pardons.

The instruments by which these prisoners were released were not delivered to them and they understood that their discharge was unconditional when they enlisted in the Army, where they served honorably until their discharge at the end of hostilities.

Also the instruments contained such language as 'commute the sentence of said paroled prisoner, so that it shall terminate September 18, 1918, at which time he is restored to all the rights, privileges, immunities, and franchises possessed by him before such conviction.' The conditions which were violated long after the prisoners had been discharged from the Army were conditions subsequent.

As we understand the above authorities they apply the rule hereinbefore stated which is: the clemency proclamation will be construed to be what it is, and its real nature is not changed by what it is called.

It is true that the courts, in construing the proclamation, should presume...