Attorney General Opinion GA-0240

ATTORNEYGENERALOFTEXAS GREG ABBOTT August 252004 The Honorable Rodney Ellis Opinion No. GA-0240 Chair, Committee on Government Organization Texas State Senate Re: Authority of the Board of Pardons and Post Office Box 12068 Paroles to consider applications for pardons Austin, Texas 7871 l-2068 based on innocence (RQ-0192-GA) Dear Senator Ellis: You ask about the requirements necessary for the Board ofPardons and Paroles (the “Board”) to consider an application for a pardon based on innocence.’ In particular you inquire about the effect of certain Board rules on the Board’s power to consider such applications. See Request Letter, sup-a note 1, at 1. Texas Constitution article IV, section 11 requires the legislature to establish a Board of Pardons and Paroles. See TEX. CONST. art. IV, 4 1 l(a). It also provides that [i]n all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons Id. art. IV, 9 11 (b). The legislature has adopted Code of Criminal Procedure chapter 48 and Government Code chapter 508 to implement article IV, section 11. See TEX. CODE GRIM. PROC. ANN. arts. 48.01-.05 (Vernon 1979 & Supp. 2004) (chapter 48); see also TEX. GOV’T CODE ANN. $5 508.001..324 (Vernon 1998 & Supp. 2004) (chapter 508), as amended by Act of Oct. 12,2003,78thLeg., 3d C.S., ch. 3, 95 11.02-.22, 2003 Tex. Gen. Laws 78, 92-98 (effective Jan. 11, 2004). Neither of these statutes refers to a pardon for innocence, although other legislation refers to such pardons. Civil Practices and Remedies Code chapter 103 provides for compensating a person for wrongful imprisonment if the person “has received a full pardon on the basis of innocence” or “has been ‘Letter from Honorable Rodney Ellis, Chair, Committee on Government Organization, Texas State Senate, to Honorable Greg Abbott, Texas Attorney General (Mar. 9,2004) (on file with Opinion Committee, also available at hnp:iiwww.oag.state.tx.us) [hereinafter Request Letter]. The Honorable Rodney Ellis - Page 2 (GA-0240) granted relief on the basis of actual innocence.” TEX. Crv. PRAC. &REM. CODE ANN. 5 103.001(a) (VemonSupp. 2004). S~~~ISOTEX.OCC.CODEANN. 5 1701.312(a)-(b)(3)(Vemon2004)(aperson convicted of a felony is disqualified to be a peace officer unless a pardon is granted for subsequent proof of innocence). You ask the following specific questions: 1. What are the requirements for the Board of Pardons and Paroles to consider an application for a pardon based on innocence? 2. Does the Board of Pardons and Paroles have the authority [to] exercise discretion in reviewing pardons of innocence? 3. Under what circumstances may the Board of Pardons and Paroles exercise that discretion? Request Letter, supra note 1, at 2. The Board has provided by rule the following requirements for considering an application for its recommendation of a pardon based on innocence: On the grounds of innocence of the offense for which convicted the board will only consider applications for recommendation to the governor for full pardon upon receipt of (1) a written unanimous recommendation ofthe current trial officials of the court of conviction; and (2) affidavits of witnesses upon which the recommendation of innocence is based; and (3) if the basis for the recommendation is evidence not previously available, a certified order or judgment of a court having jurisdiction accompanied by a certified copy of the findings of fact. 37 TEX. ADMIN. CODE 3 143.2 (2004) (emphasis added). “Trial officials” are “[tlhe present sheriff, prosecuting attorney, and judge in the county and court of offense, conviction and release.” See id. § 141.111(48). This rule states that the board “will only consider” applications for a recommendation of a pardon based on innocence if they include certain documents. See id. $ 143.2. You state that the Board’s failure to consider an application for a recommendation for a pardon based on innocence would deny the applicant’s right ofremonstrance guaranteed by Texas Constitution article I, section The Honorable Rodney Ellis - Page 3 (GA-0240) - .- 27. See Request Letter, supra note 1, at 2. You also state that “[tlhe right of remonstrance guarantees meaningful review of petitions for executive clemency by requiring that the Board at a minimum ‘consider’ the petition.” Id, (citing Graham v. Tex. Bd. ofPardons & Paroles, 913 S.W.2d 745,752 n.10 (Tex. App.-Austin 1996, writ dism’d w.0.j.). Article I, section 27 states as follows: The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. TEX. CONST. art. I, (i 27. In Graham, the Austin Court of Appeals addressed the right of remonstrance as follows: Graham’sright ofremonstranceguaranteesmeaningfulreview of his petition by the Board by requiring that the Board “consider” it. Professional Ass’n of College Educators v. El Paso County Community Dist., 678 S.W.2d 94,96 (Tex. App.-El Paso 1984, writ ref d n.r.e.). A government body considers a remonstrance ifit stops, looks, and listens to a grievance. Id. However, the right to have the Board consider his petition does not entitle Graham to any specific due process: “[there is] no requirement that those trusted with the powers of government must negotiate or even respond to complaints tiled by those being governed.” Id.; accord Corpus Christi Zndep. Sch. Dist. v. Pad&z, 709 S.W.2d 700,704-05 (Tex. AppCorpus Christi 1986, no writ). We hold that the right ofremonstrance does not entitle Graham to a hearing before the Board on his petition for clemency. Graham, 913 S.W.2d at 752 n.10. Nothing in Graham forbids the Board from exercising its rulemaking power to establish requirements for an application for a recommendation of a pardon based on innocence. In answer to your first question, Title 37, section 143.2 of the Texas Administrative Code states the Board’s requirements for considering an application for a pardon based on innocence. See 37 TEX. ADMM. CODE 3 143.2 (2004). The Board’s rule on the documents required in an application for its recommendation of a pardon based on innocence must, however, be read together with the following rule on the use and effect of Board rules: These rules are prescribed for the performance of the constitutional and statutory powers and functions vested in the board. The Honorable Rodney Ellis - Page 4 (GA-0240) ,- In no event shall they or any of them be construed as a limitation or restriction upon the exercise of any discretion by the board or by a parole panel. Id. 5 141.51. Administrative rules are ordinarily construed in the same way as statutes. See Lewis v. Jacksonville Bldg. &Loan Ass’n., 540 S.W.2d 307,310 (Tex. 1976); CityofLubbockv. Pub. Util. Comm’n ofrex., 705 S.W.2d329,330-31 (Tex. App.-Austin 1986,writref dn.r.e.);Tex.Att’yGen. Op. No. JC-0418 (2001) at 5. A statute must be harmonized with other relevant statutes, ifpossible. See R.R. Comm’n of Tex. v. Moran Util. Co., 728 S.W.2d 764, 767 (Tex. 1987); State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex. 1937). We read section 141.51 as authorizing the Board to make reasonable exceptions to the requirements stated in section 143.2. See 37 TEX.ADMM. CODE §§ 141.51,143.2 (2004). The Board has stated that “[iInnocence pardons are extremely unusual and are usually considered only on unanimousrecommendationofan applicant’s three trial officials (sentencingjudge, district attorney, sheriff),“* thus indicating that the Board on occasion waives requirements stated in its rule. “In construing a statute, . a court may consider among other matters the administrative construction of the statute . .” TEX. GOV’T CODE ANN. § 3 11.023(6) (Vernon 1998); Ins. Co. of Pa. v. Stelhik, 995 S.W.2d 939, 943 (Tex. App.-Fort Worth 1999, pet. denied) (interpretation of Texas Workers Compensation statute in memo to field officer by executive director who is charged with enforcing statute was entitled to “serious consideration” in construing statute); Tex. Att’y Gen. Op. No. GA-0135 (2004) at 4. Courts will moreover defer to an agency’s interpretation of its own rule. See Pub. Util. Comm’n of Ten. v. GulfStates Utils. Co., 809 S.W.2d 201,207 (Tex. 1991). In answer to your second question, we conclude that the Board may, in the exercise of reasonable discretion, waive requirements stated in Title 37, section 143.2, Texas Administrative Code, for considering an application for a pardon based on innocence. See 37 TEX. ADMIN. CODE 9 143.2 (2004). You also inquire about the circumstances under which the Board may exercise its discretion to waive requirements stated in section 143.2. See Request Letter, supra note 1, at 2. This is a matter within the Board’s reasonable discretion. We note, however, that section 143.2 requires the applicant to provide documents showing innocence. See 37 TEX. ADMIN. CODE §143.2(2) (2004). The Board could reasonably waive its section 143.2 requirement for a particular document or documents where the applicant presents other highly persuasive evidence of innocence. See TEX. CODECRIM. PROC. ANN. arts. 64.01-.05 (Vernon Supp. 2004) (chapter 64 concerning forensic DNA testing of convicted person). We reiterate that it is for the Board to determine when it should waive the requirements stated in section 143.2. 2Texas Board of Pardons and Paroles, Executive Clemency in Texas, What is a Full Pardon? available at http://www.tdcj.state.tx.usmpplexec~cle~exec~cle~h~ (emphasis added), -. .- The Honorable Rodney Ellis - Page 5 (GA-0240) SUMMARY The Board of Pardons and Paroles has by rule established requirements for considering applications for its recommendation to the governor for a pardon based on innocence. Pursuant to another rule, the Board has discretion to waive such requirements. It is a matter within the Board’s reasonable discretion to determine when it should waive a requirement or requirements. BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Susan L. Garrison Assistant Attorney General, Opinion Committee