State ex rel. Smith v. Blackwell

• Decision Date: 10 October 1973
• Docket Number: No. 47573,47573
• Citation: 500 S.W.2d 97
• Parties: STATE of Texas ex rel. Robert O. SMITH, District Attorney, 53rd Judicial District, Travis County, Texas, Relator, v. Thomas D. BLACKWELL, Judge, 167th Judicial District Court, Travis County, Texas, Respondent.
• Court: Texas Court of Criminal Appeals

Page 97

500 S.W.2d 97

STATE of Texas ex rel. Robert O. SMITH, District Attorney 53rd Judicial District, Travis County, Texas, Relator, v. Thomas D. BLACKWELL, Judge, 167th Judicial District Court Travis County, Texas, Respondent.

No. 47573.

Court of Criminal Appeals of Texas.

Oct. 10, 1973.

Rehearing Denied Oct. 31, 1973.

Sam Houston Clinton, Jr., Austin, for Judge Tom Blackwell.

Robert O. Smith, Dist. Atty., David Spencer, Asst. Dist. Atty., Austin, W. T. Westmoreland, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This writ of prohibition proceeding presents the question of the Legislature's authority to enact legislation empowering district judges to resentence under a new law those individuals who were previously convicted of offenses involving marihuana under a prior law.

In this proceeding the relator, Honorable Robert O. Smith, District Attorney of Travis County, seeks to prevent the respondent, Honorable Thomas D. Blackwell, Judge of the 167th Judicial District Court, from acting upon a petition for resentencing sought by Frank Demolli, an inmate of the Texas Department of Corrections, said petition being provided for by Section 4.06 of the Texas Controlled Substances Act codified as Article 725f, Vernon's Ann.P.C. (Acts 1973, 63rd Leg., Ch. 429, p. 1132--effective August 27, 1973).

It is relator's contention that the provisions of said Section 4.06 are violative of the provisions of Article IV, Section 11, of our Constitution which invests the Governor, acting upon the recommendation of the Board of Pardons and Paroles, with the power to grant reprieves, commutations of punishment and pardons and to remit fines and forfeitures.

At the outset, we must, of course, determine whether this court has jurisdiction of these proceedings.

Jurisdiction

Article V, Section 5, of our State Constitution, provides that this court and the judges thereof 'shall have the power to issue the writ of habeas corpus, And under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.' (emphasis supplied)

'The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.' State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892, 894 (1961).

Without question this court may issue a writ of prohibition in those cases where it is necessary to enforce its jurisdiction. State ex rel. McNamara v. Clark, 79 Tex.Cr.R. 559, 187 S.W. 760 (1916); Gooch v. Fuchs, 170 Tex.Cr.R. 136, 339 S.W.2d 202 (1960); State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250 (1949); State ex rel. Wilson v. Briggs, supra; State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971), cert. den., 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182. See also 46 Tex.Jur.2d, Prohibition, Sec. 11, p. 460.

A writ of prohibition is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising jurisdiction with which they have not been vested. See State ex rel. Vance v. Clawson, supra.

Further '(P)rohibition issues to prevent the commission of a future act and not to undo, nullify, or review an act already the act sought to be prevented is already done, but will lie when such act is not a full, complete, and accomplished judicial act.' 73 C.J.S. Prohibition § 10c, p. 30. performed; it will not be granted when

Thus we must determine whether the issuance of such writ is applicable under the facts presented by the instant proceedings.

The petitioner under the provisions of Section 4.06 of the Texas Controlled Substances Act, Frank Allan Demolli, was convicted of the offense of possession of marihuana in 1971 in the 167th District Court of Travis County. His punishment was assessed by the jury at twenty-five (25) years' confinement in the Texas Department of Corrections. See former Article 725b, Vernon's Ann.P.C. 1925. The evidence reflects he possessed a little over twenty-one (21) pounds of marihuana.

On his appeal his conviction was affirmed, and the mandate of this court issued ordering that the judgment of this court be carried out. See Demolli v. State, 478 S.W.2d 554 (Tex.Cr.App.1972).

Subsequent thereto, the Texas Controlled Substances Act was enacted, and Demolli now seeks benefit of the provisions of Section 4.06 thereof by petitioning the convicting court for resentencing. The respondent, judge of the convicting court, set the petition for hearing, and the relator brought these proceedings contending the said Section 4.06 is unconstitutional and that for the respondent to act thereunder would unlawfully interfere with the mandate of this court issued in Demolli's case.

We conclude that we have jurisdiction to pass upon the issue presented.

We turn now to a consideration of constitutional provisions involved in the question presented by this proceeding.

Constitutional Authority to Grant Clemency

Article IV, Section 11, Vernon's Ann.St. Constitution, grants to the Governor the power, after conviction, and upon the recommendation of the Board of Pardons and Paroles to grant reprieves and commutations of punishments and pardons. He is also given the power to remit fines and forfeitures. ¹

In drafting a constitution, the people of a state are at liberty to lodge this power in any branch of government that they may so desire. See Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933). History teaches us that for many years Texans placed almost complete pardoning power in the office of the Governor. Texas Constitutions from that of 1845 through the Constitutions of 1861 and 1866 and the original section of the present 1876 Constitution were very similar in their phraseology touching on the pardoning power. See Interpretive Commentary, Article IV, Section 11, Vernon's Ann.St. Constitution, Vol. 1, p. 797.

The present constitutional provision, Article IV, Section 11, Vernon's Ann.T.S., Constitution, was amended on November 3, 1936. It placed a limitation upon the Governor's power and provided that he must act upon the written recommendation of the Board of Pardons and Paroles in granting reprieves and commutations of punishments and pardons after conviction in all criminal cases except treason and impeachment. He also was given the authority to remit fines and forfeitures upon recommendation of the Board.

While a limitation was placed upon the executive's power, the general scope of the power of clemency still rests with the Governor.

Over the years the courts have had occasion to strike down any encroachment by other branches of government upon the power granted to the executive by the people. In 1930 the Supreme Court of Texas in Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526, declared unconstitutional an act passed by the legislature providing a pardon for a former impeached governor. Earlier, the Court of Criminal Appeals held that whenever the power to discharge convicts before they had served their terms was conferred upon other officials the statutes were invalid. Ex parte Gore, 109 Tex.Cr.R. 244, 4 S.W.2d 38 (1928).

It is also to be observed Article II, Section 1, of our State Constitution divides the powers of government into three distinct departments, Executive, Legislative and Judicial, and further provides '. . .; And no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.' (emphasis supplied)

This clearly worded Article has been interpreted to mean that a power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others. Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912). And any attempt by one department of government to interfere with the powers of another is null and void. Ex parte Rice, 72 Tex.Cr.R. 587, 162 S.W. 891 (1914). This has long been a maxim of constitutional law.

If there has been any remission of the Governor's power of clemency after conviction in criminal cases, it is to be found in Article IV, Section 11A, Vernon's Ann.St. Constitution, which provides:

'The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.' ²

This section of the Constitution is a limited grant of clemency to the courts by the people and does not encompass the general authority to grant commutation and pardons. The section itself has been held not to be self-enacting. State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250 (1949).

With this constitutional background we now turn to the new enactment which has been called into controversy by this proceeding.

Section 4.06, Texas Controlled Substances Act

Said Section 4.06, supra, provides as follows:

'Sec. 4.06 (a) Any person who has been convicted of an offense involving a substance defined as marihuana by this Act ³ prior to the effective date of this Act may petition the court in which he was convicted for resentencing in accordance with the provisions of Section 4.05 of this Act ⁴ whether he is presently serving a sentence, is on probation or parole, or has been discharged from the sentence.

'(b) On receipt of petition, the court shall notify the appropriate prosecuting official and shall set the matter for a hearing within 90 days.

'(c) At the hearing the court shall review the record or the prior conviction. The court Shall resentence the petitioner in accordance with the appropriate provision of Section 4.05 and shall grant him credit for all time served on the original sentence prior to the...