Rose v. State

Decision Date12 November 1987
Docket NumberNo. 193-87,193-87
Citation752 S.W.2d 529
PartiesVernon Lee ROSE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

John L. Fitzgerald, Kerry P. Fitzgerald, Dallas, for appellant.

Henry Wade, Former Dist. Atty. and John Vance, Dist. Atty. and John D. Nation, Randy Manasco, Patricia Poppoff Noble, Jeffrey B. Keck and Michael A. Klein, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



In this cause we decide whether an instruction on the law of parole in the charge of the court to the jury given pursuant to the mandate in Article 37.07, § 4(a), V.A.C.C.P., is constitutional. The Dallas Court of Appeals sitting En Banc held the instruction is not violative of the separation of powers doctrine of Article II, § 1 in the Texas Bill of Rights or the Due Process Clause of the Fourteenth Amendment or the Due Course Clauses of Article I, §§ 13 and 19 in our Bill of Rights. Rose v. State, 724 S.W.2d 832 (Tex.App.--Dallas 1986). Based solely on the Constitution and laws of the State of Texas, we will find such an instruction, as well as the mandating statute, is unconstitutional.


Long before there was a Board of Pardons and Paroles the Constitution of the State of Texas vested the power of clemency solely in the Governor. See Article IV, § 11, Constitution of 1876, as originally adopted, quoted in Historical Note following; see also therein references to earlier constitutions containing similar provisions. While from time to time the Governor was aided by something called "Board of Pardon Advisers," see Interpretive Commentary to § 11, and was taking recommendations as to parole from the Board of Prison Commissioners, exercise of that clemency power vested in the Governor was "subject to no limitations by the Legislature other than that mentioned in the constitutional provision with reference to the remission of fines and forfeitures and with reference to treason." Ex parte Nelson, 84 Tex.Cr.R. 570, 209 S.W. 148 (1919) 1 and Ex parte Redwine, 91 Tex.Cr.R. 83, 236 S.W. 96 (1922) (any part of parole law wherein clemency power of the chief executive under Article IV, § 11 is "in any wise abridged or infringed would be held.... unconstitutional").

It was then and still is a ground for new trial that the jury "received other testimony" during its deliberations, or engaged in "misconduct" such that defendant "has not received a fair an impartial trial." Formerly Article 40.03(7) and (8), V.A.C.C.P.; see now Tex.R.App.Pro. Rule 30(b)(7) and (8). So it was that when jurors recounted instances in the county of trial that after they were convicted and sentenced "the Governor had wrongfully interfered and used the pardoning power to shorten the terms of service of those condemned," defendant was entitled to a new trial. Weaver v. State, 85 Tex.Cr.R. 111, 210 S.W. 698 (1919). 2

Reacting to a general sense developed during those times that "some governors granted pardons indiscriminately," the Legislature proposed and in 1936 the voters adopted an amendment to Article IV, § 11 to remedy the situation. Interpretive Commentary following. It created a Board of Pardons and Paroles (Board) and, inter alia, conditioned exercise of executive clemency with respect to commutation of Under this new regime in an unbroken line of cases the Court would continue to hold, generally speaking, that when a discussion of parole by jurors "had the effect of bringing about [an] enhanced punishment," defendant was entitled to a new trial. E.g., Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168, 170-171 (1947); Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952). Thus a prosecutor must not invite a jury to consider the parole law in assessing punishment. Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982); Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975). While decisions collected by the Court in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), indicate it was not particularly consistent in delineating germane factors to be evaluated in analyzing the issues, it was satisfied that "the parole law is not for the jury's consideration," id., at 853.

punishment and pardons "on the written signed recommendation and advice of the Board;" with respect to remission of fines and forfeiture, "under such rules as the Legislature may prescribe," again with written recommendation and advice of the Board.

In Heredia v. State, supra, the Court found that "discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury's consideration," id., at 853. The reason was founded in our Constitution, viz:

"The decision to parole, if and when made, is beyond the province of the courts ... and therefore the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulations by the legislative branch. Article IV, Section 11, Texas Constitution."

Id., at 853, n. 4. 3

To eliminate the possibility that a jury would become involved in a discussion of parole law, the Court made clear that the trial court should instruct the jury in its charge on punishment "that it should not discuss or consider the possible effects of the parole laws or system." Moore v. State, 535 S.W.2d 357, 358 (Tex.Cr.App.1976). Elaborating on both Heredia and Moore in Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978), the Court further explained:

"It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. * * * * Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch. Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of that power by the executive branch is as much an unconstitutional interference as is an attempted usurpation of that power. See Ex parte Giles [502 S.W.2d 774 (Tex.Cr.App.1974) ] and Smith v. Blackwell [500 S.W.2d 97 (Tex.Cr.App.1973) ], for unconstitutional grants of authority to usurp clemency powers."


Now we must first determine whether constitutional principles barring jurors from considering parole laws have survived the revision of Article IV, § 11, effective when the voters approved the proposition submitted by S.J.R. No. 13 in 1983. 4 Vernon's Texas Session Law Service 1983, at A-158. As revised, § 11 reads in pertinent part:

"Section 11. The Legislature shall by law establish a Board of Pardons and * * * * " 4

Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws.


In addressing the separation of powers issue under the Texas Constitution, the Dallas Court of Appeals gave scant attention to revised § 11. Rose v. State, supra, 835-837. It merely disagreed that § 11 supports appellant's contention "that parole is a component of the clemency powers vested in the executive branch of government and, therefore, these [jury] instructions constitute an usurpation by the judiciary, acting through the jury, of that executive power," because its own reading of the first paragraph "gives the legislature the power to enact parole laws" and "[t]hus the rules governing parole are within the control of the legislature." Id., at 836. That reading begs the real question.

The second sentence in the first paragraph of revised § 11 is derived from former § 11 similarly providing that the Legislature "shall have authority to enact parole laws," and we find no indication that the revision is intended to provide a broader scope of legislative authority in regard to parole laws than already possessed. Therefore, contrary to the view of court of appeals, that the Legislature retains the authority granted in 1936 to enact parole laws is of little importance. What is crucial is the role of the Board, and to that we now turn.


Clemency power is inherent in sovereignty, and may be lodged in whole or in part wherever the people determine. Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.1973); Smith v. Blackwell, 500 S.W.2d 97, 100 (Tex.Cr.App.1973); Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933); Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29, 44 (1914); 27 Tex.Jur.3d 263-264, "Criminal Law" § 4381; 44 Tex.Jur.2d 5-6 "Pardon, Reprieve, and Commutation" § 2; Interpretive Commentary following Article IV, § 11.

In the second paragraph of § 11, as revised, the Governor retains power to grant and to revoke a conditional pardon, as well as all other clemency powers save one formerly in the Governor. The effect of revised § 11 is to remove parole eo nomine from the clemency power of the Governor and to vest that clemency power to grant and to revoke paroles in the Board. In the sense that the Governor, as chief executive, is no longer empowered to grant it, parole may not be construed to be any form of "executive clemency," Article 42.18, § 2a. But parole is an act of grace. Ex parte Lefors, 165 Tex.Cr.R. 51, 303 The caption of S.J.R. No. 13 characterizes the Board to be established as "a statutory agency," meaning no more than it is a creature of statute. However, since in 1936 the Board was elevated to constitutional status in the Executive Department and the first sentence of the first paragraph in § 11 mandates the Legislature to establish a Board, we find that, whatever its characterization, the Board remains where it has...

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