Austin Chronicle
JULY 17, 2009 BY JORDAN SMITH
The debate over whether Gov. Rick Perry is free to grant a posthumous pardon -without any change of law, without a constitutional amendment – is still raging: On July 6, the Legislative Council – which provides legal research and opinions to lawmakers – weighed in, opining that state laws are actually silent on the topic. “May the governor grant a legally effective posthumous pardon under current Texas law?” wrote Gabe Brake, a Lege Council attorney.”Possibly.” The law is “unclear on the question,” and “no Texas court has squarely answered this question,” he wrote.
At issue is a posthumous pardon for Timothy Cole, who died in prison while serving time for a 1985 rape in Lubbock that he did not commit. Cole was posthumously exonerated earlier this year, and since then his family has been seeking a pardon from Perry – so far, with no success.
Lawmakers failed to pass a joint resolution this spring that would have expressly granted the governor such power (the measure became a casualty of House chubbing). Sen. Rodney Ellis, D-Houston, said late last month that he doesn’t believe Perry needs a constitutional amendment to do the job but that if that was Perry’s position, he should add the issue to the special session call. That didn’t happen either.
According to Perry, his hands are tied by a 1965 opinion issued by then-Texas Attorney General Waggoner Carr, who concluded that a posthumous pardon is not possible since the inmate in question is dead, and thus, “the pardon not being delivered to the convict during his lifetime, it could not be accepted by him.” That’s Perry’s position, too, it seems – and he’s sticking with it. Th egovernor is sorry that lawmakers couldn’t get a resolution passed to give him the power, Perry spokeswoman Katherine Cesinger said in a message to the Chronicle earlier this month, but his hands are tied.
But Ellis says that’s just not true: The A.G. opinion in question is not binding, and there is nothing in the law that would expressly prohibit Perry from doing the right thing. Indeed, the Lege Council opinion seems to support the position of Ellis and his allies on this issue, Reps. Marc Veasey, D-FortWorth, and Ruth Jones McClendon, D-San Antonio. The notion that an exoneree must be alive to receive a pardon dismisses the so-called “public welfare” view taken by the U.S. Supreme Court in 1927, which ruled that a pardon issued by the president was valid regardless of whether the person was alive to accept it. “The public welfare, not [the] consent” of the person being pardoned, “determines what shall be done,” the court ruled. To date, 10 such pardons have been granted in nine states, and two presidents, Bill Clinton and George W. Bush, have issued posthumous pardons.
Perry’s office did not respond to additional inquiries, and his position ispresumably unchanged.