Ex Parte Davenport , 110 Tex. Crim. 326 ( 1927 )

Appellant files an able and interesting motion for rehearing and makes the point that the Governor had no power or authority to revoke the pardon theretofore granted appellant until after appellant had been given a hearing upon the issue as to whether the conditions in the pardon had been broken. Attention is called by appellant to the fact that there is nothing in the pardon itself which gave to the Governor the right to decide said issue, and Ex parte Redwine, 236 S.W. Rep. 96, and Ex parte Frazier, 239 S.W. Rep. 972, are differentiated from the instant case upon this point.

The pardon in this case was granted on condition that appellant "Be hereafter confined, restrained and kept continuously in some State hospital for the insane, and in case he is not admitted to some State hospital for the insane, then the said Gratton Davenport is to be confined and kept continuously in some private institution for the care and treatment of the insane." The right to revoke is expressly set out therein in the following language: "And in case said Gratton Davenport is not so kept or confined continuously in one or the other kind of institution, then this pardon may be revoked by the Governor of the State, and said defendant be arrested and returned to the State penitentiary for the rest of his natural life." The order of revocation issued by the Governor is fully set out in the original opinion, and in same it is certified by the Governor that "It has been made known to me," etc., i.e., that in some way the Governor had received information that the conditions of the pardon had been violated. The record before us is bare of any showing as to how or by what means the Governor was so informed, and it occurs to us that, prima facie at least, the recital in the revoking order last referred to, must be held to justify the issuance of such order upon the assumption of the regularity of the information had by the Governor.

When there is no express reservation in the pardon to the Governor of the right of determination that the conditions of said pardon have been violated, and no statute exists lodging in any particular person or tribunal such right of determination, the courts will be remitted to common law rules governing in such cases. We find in Ruling Case Law, Vol. 20, p. 574, the following:

"The established practice at the common law and in the American states, in the absence of statutory regulation and in the absence from the pardon itself of express stipulations for that purpose, is for some court of general criminal jurisdiction upon having its attention called, by affidavit or otherwise, to the fact that a pardoned convict has violated, or failed to comply with, the condition or conditions of his pardon, to issue a rule, reciting the original judgment of conviction and sentence, the pardon and its conditions, and the alleged violation of, or noncompliance with, the condition or conditions thereof, and requiring the sheriff to arrest the convict and bring him before the court to show cause, if any he can, why the original sentence imposed upon him should not be executed."

Whether such investigation was had in this case prior to the issuance of the revocation, does not appear, save in the implication arising from the recital in said order that the Governor was informed, etc. In the case of Alvarez v. State,50 Fla. 24, cited in the notes as supporting the quotation from Ruling Case Law, supra, it is held, in substance, and as we think correctly, that one taken into custody upon a claim that he had violated the conditions of a conditional pardon, has his right to a habeas corpus hearing, and if the right to decide whether such conditions have been violated be not given to the Governor in the law or the pardon, then upon such hearing the accused might show that he had not violated the conditions of such pardon, which being shown he should be discharged, otherwise not. The exact matter here involved is of first impression in this State. In Ex parte Rice, 72 Tex.Crim. Rep., the principle was to some extent discussed, but there being no issue made in that case of the violations of the conditions of the pardon, the discussion was more or less obiter dicta. So, also, in Ex parte Frazier, 239 S.W. Rep. 972.

We would be of opinion that, there being no statute in this State providing a tribunal or procedure for the trial of such issue, and no reservation to the Governor in the pardon of the right to decide that the conditions of same have been violated, — the grantee of the pardon would be entitled to a judicial determination if he so desired, of the question of his violation of such conditions, but we are also of opinion that this end is fully attained if, upon or after his arrest by virtue of the revocation, he have his hearing upon a writ of habeas corpus, and at such hearing he be given his right to show that he had not violated such conditions. This was done in the instant case. After the Governor issued his revoking order, appellant sued out his writ of habeas corpus, and at a hearing and in the judgment remanding him we note the following:

"The court further finds that on or about the 5th day of January, 1927, the Governor of the State of Texas issued a proclamation and conditional pardon to the said Gratton Davenport.

"The court further finds that the conditions provided for in said pardon were not carried out as required, after a reasonable length of time had elapsed.

"The court further finds that the Governor of Texas, Dan Moody, on or about the 5th day of February, 1927, revoked the pardon theretofore granted by Governor Miriam A. Ferguson, on account of the breach of conditions by the defendant."

This seems decisive of the question as to the right of appellant to a judicial hearing to decide whether the conditions of the pardon had been violated by appellant.

Some cases hold that regardless of any reservation to the Governor of the right to decide if the conditions of a pardon be violated, that he has inherently the right to so decide. Woodward v. Meador, 124 Ind. 439; Kennedy v. Com., 135 Mass. 48; Fuller v. State,122 Ala. 32. In Ex parte Brady, 70 Ark. 379, the condition of the pardon being that Brady would violate the law no more, it was held upon habeas corpus seeking release after he was retaken following a peremptory revocation of a pardon, that his own act had annulled the pardon and he was not entitled to any further hearing. Some cases hold that the issue of violation vel non of the conditions of the pardon, may be tried before the court, Haff v. Dyer, 4 Ohio C.C. 495; or may be before a jury. State v. Wolfer, 53 Minn. 135. The last mentioned case, as also Alvarez v. State, supra, says that the proceeding to test the question of such violation is purely informal. We know of no orderly proceeding under the practice in this State by which the right of a competent court can be invoked to try such issue, save by habeas corpus following the arrest of the accused in consequence of the revocation. Hence our holding that appellant has no cause for complaint here.

Appellant urges three other grounds in his motion, each of which was carefully weighed and considered, and as we think properly decided in our original opinion.

The motion for rehearing is overruled.

Overruled.