Ex Parte Rice , 72 Tex. Crim. 587 ( 1913 )

In this case appellant had been convicted in the District Court of Hill County, Texas, at the March term of the court in 1907, and sentenced to imprisonment in the penitentiary for life. After serving about five and one-half years of the term, the Governor issued him a conditional pardon, which, omitting the formal part, reads as follows:

"Now, therefore, I, O.B. Colquitt, Governor of Texas, feel constrained to grant the said D.R. Rice a conditional pardon, and I do by virtue of the authority vested in me by the Constitution and laws of this State, hereby, for the reason specified, grant the said D.R. Rice a conditional pardon from said conviction and sentence passed upon him by the District Court of Hill County, the condition being that if this pardon is accepted by the beneficiary, he must conduct himself as a good and law-abiding citizen and not again violate the laws of the State before the expiration of the time for which he was sentenced; otherwise, this pardon is subject to be revoked at the discretion of the Governor, and, he, the said D.R. Rice, may, by order of the Governor of Texas, be again taken into custody by the proper officers of this State and taken to and confined in the State penitentiary until the end of his sentence." On the 20th day of May of this year appellant endorsed on said pardon his acceptance of it on the terms and conditions named therein, and was released from prison. The acceptance reading: "I accept this pardon on conditions above set forth, this the 20th day of May, 1913. D.R. Rice." Thereafter, the Governor, on the 23rd day of May, issued a proclamation revoking, cancelling and annulling the conditional pardon, ordering the rearrest and confinement of relator in the penitentiary, the revocation reading as follows:

"Be it further known, that since the said conditional pardon was granted as aforesaid, further evidence has been presented, and upon further consideration it is not thought that the said D.R. Rice is deserving of clemency at this time.

"Now, therefore, I, O.B. Colquitt, Governor of Texas, by virtue of the authority vested in me under the law, and by virtue of the said conditional pardon above quoted, do hereby determine that the said D.R. Rice is not deserving of the clemency asked for at this time, and do further hereby declare the said conditional pardon revoked and void, and direct the sheriff of Hill County, or any other sheriff or peace officer of this State to take into custody the body of the said D.R. Rice and convey him back to the State penitentiary and deliver him to the proper officer thereof, to be confined therein for such portion of his sentence as had not expired at the time of his release on said conditional pardon."

Appellant was rearrested and confined in the Tarrant County jail when he sued out a writ of habeas corpus before Hon. Marvin H. Brown, Judge of the District Court of Tarrant County. When the application came on to be heard the judge refused to admit any testimony other than the two proclamations of Governor Colquitt — the one granting the conditional pardon, and the other revoking it. Upon the hearing, relator was remanded to the custody of the sheriff, and prosecutes this appeal.

Able arguments were made in this court, both by counsel for relator and counsel for the State. Briefs showing research, study and much learning were filed by both counsel, and owing to the importance of the question involved, we have given the question much thought. The reporter is requested to print the briefs in connection with this opinion, and it being so done, it becomes unnecessary for us to state the contentions of each, and it becomes only necessary for us to decide those questions necessary to the disposition of this case; the others raised we will not discuss.

Many able opinions have been written in regard to the pardoning power by the court of final resort in many of the States, and we have carefully and thoughtfully read many of them. We adopt those that hold:

"Pardon has been defined as a `remission of guilt.' Another definition, much quoted, is that it `is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.' In another case it is said to be `an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power or of officers under its direction.' . . . But these definitions must necessarily, as all definitions of law terms, convey an imperfect idea of the full meaning and effect of a pardon. It is only by a study of the adjudged case that an accurate idea of a pardon, in law, can be obtained. . . .

"The Saxon kings of England had the power to grant pardons; and then and ever since it has been deemed one of the king's prerogatives. Anciently the power of pardoning in certain districts was claimed by the lords of marches, and even by others who had jura regalia by ancient grants from the crown, or by prescription. But by an early statute it was declared that the king had the sole power of pardoning treason or felonies, whether the offense was `committed in England or Wales, or the marches of the same.' In that country, the king is the prosecutor of all offenders against the criminal laws of the realm, and in his name all actions are brought. It was, then, perfectly consistent in theory that the king could, by means of a pardon, remit any punishment due to public justice, or any fine or forfeiture which he himself would otherwise receive.

"Under our Constitution the President has `power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.' There was a motion made in the convention to limit his power to grant reprieves until the ensuing session of the Senate; and a further attempt to withhold the power to pardon for treason, and leave that power to Congress; or that he might pardon for treason by and with the advice and consent of the Senate. It was also proposed that in all cases the consent of the Senate should be necessary to render a pardon available. But the clause was settled as it now is, seemingly without much controversy.

"It was the theory of the early law writers of England that all liberties of the subject were first derived from the crown. Such was the understanding of Bacon. And thus arose the claim of those monarchs to pardon offenses viewed as trespasses against their peace. Certain great authorities have gone so far as to state that no pardon could be granted in a democracy, but these are only illustrations of the narrow and limited views so frequently found among the early legal writers, and which today frequently impede, rather than promote, public justice. In this country all power is in the people. If unrestricted by any constitution, the power of Congress would be supreme — supreme as the delegates and representatives of the people. In such a case Congress would have supreme power to grant a pardon. What is true of Congress is also true of the Legislatures of the States. But the power of granting pardons to offenders against the United States has been delegated to the President, because he stands, if such can be said of any person, in the place similar to that occupied by the monarchs of other nations. He does not hold the power simply because he is the chief executive, but because it is expressly delegated to him. And what is true of the President is also true of the chief executive of a State where such power is granted to him by the Constitution. . . .

"It is a maxim of constitutional law that no one of the three great departments of the government shall intrude upon any one of the others, and all attempts to do so are void. And it is universally conceded that the Constitution having given the President power to grant pardons, that such grant is to the exclusion of all the other departments of the government, and that no other person can grant it or in any way dictate to the chief executive to whom he shall extend or withhold clemency. `This power is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him can not be fettered by any legislative restriction.' Such is the rule where the chief executive of a State has sole power, under the Constitution, to grant a pardon."

These views and thoughts are copied from very able law writers, and express most fully our views on the subject. The Constitution of this State granting that power to the Governor, it is for him alone to exercise without restraint or restriction from any source, other than the sovereigns of the State who wrote and adopted the Constitution. The power to grant absolute pardons necessarily carries with it the lesser power to grant conditional pardons, and to write into the gift or grant such conditions as he deems advisable, without restraint or hindrance, so long as he states therein no illegal or immoral conditions. In the conditional pardon issued in this case, he stated no illegal nor immoral condition, and he had the right, authority and power to place therein the conditions he did write into it, and he would have the right to place therein any other conditions he deemed advisable. Thus far, we thoroughly agree with counsel for the State in their contention.

But counsel for the State insist that the power to grant pardons necessarily carries with it the authority and power tocontrol the pardon after its issuance and acceptance. Under all the authorities we have been able to find, the rule is that when the Governor has issued an unconditional pardon, and it is accepted by the prisoner, and he is released thereunder, all power and control over the prisoner is gone. The Governor has no authority to revoke an unconditional pardon after its issuance, delivery and acceptance. It is true that when a pardon has been obtained by fraud, when that fact is proven, it may be cancelled and annulled by the proper tribunal, but this must be legally ascertained before an unconditional pardon can be cancelled, and the prisoner rearrested and confined.

A conditional pardon is as absolute an act upon the conditions named therein as is an unconditional pardon. It can be revoked and annulled only upon a violation of the conditions the Governor has seen proper to insert therein. Upon a violation of the conditions, the right of revocation at once arises, but if the conditions are not violated the right to annul does not exist. This right springs into existence co-incident with the violation of the conditions, or either of them, named in the conditional pardon. If relator has violated any of the conditions named in the gift or grant of the Governor, and this fact is properly ascertained neither this court nor any other tribunal can question his right to cancel and annul the pardon, or review or control his discretion and power in so doing. But the question arises, does the Governor state or claim in the proclamation of revocation that relator has violated any of the conditions he deemed advisable to place in the pardon granted by him? He granted it, the "condition being that if this pardon is acceptedby relator, he must conduct himself as a good and law-abidingcitizen and not violate the laws of the State before theexpiration of the time for which he was sentenced," in this case being during the remainder of his life. Now, in the proclamation of revocation, does the Governor allege, state or find that relator has violated the conditions therein named? Does he state or claim that in the three days of his release he did not conduct himself as a good and law-abiding citizen, or does he claim that relator has violated the laws of this State? No, the sole ground alleged is that since the granting of the conditional pardon further evidence has been presented, and upon further consideration he does not think relator entitled to clemency at this time. It is but another way of stating if he had had this further evidence he would not have granted the pardon he had theretofore granted. So, the question presented is, that having granted a pardon upon conditions named therein, and the pardon delivered and accepted, can the Governor revoke it at his will, even though the relator never violates the conditions the Governor saw proper to place therein as a condition upon which he would extend mercy or grace? Can he take back the pardon, even though the relator religiously lives up to the conditions upon which it was granted? That the Governor can revoke the pardon if relator violates the conditions of the pardon, can not be questioned, for he reserved in the grant the right to do so, and this he had the right to do. But, having granted relator a pardon upon the conditions that he conduct himself as a good law-abiding citizen, and that he violate no law of this State, and this pardon having been delivered to him and accepted by relator, the power and authority to annul it, except upon the violation of the conditions named, does not exist. It is not inherent in the office of Governor, it was not granted to him by the Constitution, and the revocation in this instance is null and void.

Counsel for the State insist that even though the action was arbitrary and without warrant in law, this court has no right to review his acts; that this discretion is confided in or conferred on him, and we have no right to review that discretion. It is true the right to grant pardons is conferred on the Governor by the Constitution, and in granting them, his actions are not subject to review, but the power to grant pardons does not necessarily carry with it the right to revoke them. As before stated, it is the universal rule that the Governor has no right to revoke an unconditional pardon when delivered and accepted. The power to revoke arises by reason of the conditions named in a conditional pardon, and its acceptance on those terms. It is true he can not be and ought not to be controlled by any other tribunal in exercising his judgment as to the conditions upon which he will grant a pardon. In this respect his discretion is absolute and can not be reviewed by this court. But, having exercised this discretion, and placed in the pardon such conditions as he deems advisable, when delivered to and accepted by the prisoner, he is entitled to his release from prison. He becomes a free man and entitled to his liberty so long as he complies with those conditions, and none have the right to say him nay, so long as he complies with the conditions which he accepted to obtain his liberty. For, while our Constitution gives to the Governor the right to grant pardons, it contains provisions also for the protection of the life and liberty of the citizen, no matter how humble he may be, and that Constitution places upon the duly constituted officers of the government the duty to see that the citizen is protected in his life and liberty so long as he may be entitled thereto under the laws of the State. Article 2 of the Constitution, in the division of the powers of the government into executive, legislative and judicial branches, further provides that no person, or collection of persons, being of one of these departments, shall exercise the power of the other, except in the instance herein expressly permitted. We are not seeking to exercise any power conferred on the Governor, nor would we do so, but there is some power conferred on — nay, a duty placed on the judiciary department of this State. Article 12, section 1, provides that the writ of habeas corpus shall never be suspended, and in section 6, of article 5, the power to issue the writ of habeas corpus is specifically conferred on this court in all cases. Section 9, of article 1, provides that the people of this State shall be secure in their persons, and no warrant to seize any person shall issue without probable cause supported by oath or affirmation; and section 19, of article 1, provides that no citizen of this State shall be deprived of his liberty, except by due course of the law of the land.

If a citizen of this State is wrongfully incarcerated in prison, it is not only our right, but under the plain mandates of the Constitution, it is made the duty of this court, upon habeas corpus, to inquire into and see if he is legally and lawfully restrained of his liberty, and if he is not, we would be recreant to the duty imposed on us if we did not order his release and protect him in his liberty.

As hereinbefore stated, if relator shall at any time after his acceptance and release under the pardon given by the Governor violate the conditions placed therein by the Governor at the time of granting same, and which he accepted to secure his release from imprisonment, the Governor, if in his discretion he deems advisable, may revoke and annul the pardon, but until he does violate the conditions he is entitled to his liberty, and he is ordered discharged. The other questions raised, in view of this disposition of the case, it is unnecessary to decide and they are not passed on.

Able counsel for the relator and the State have cited so many authorities, we have not deemed it necessary to do so in this opinion, but merely refer to them, the briefs being ordered printed in connection with this opinion.

Reversed, and relator ordered discharged.

Relator discharged.

ON REHEARING. June 27, 1913.