AMERICAN BAR ASSOCIATION
Below is a list of questions related to the provision of clemency in capital and non-capital
cases in the State of Texas. Please answer each question as thoroughly and accurately as
possible, attaching additional pages if necessary. If you prefer an electronic copy of
this survey please email or call staff attorney Mark Pickett at
[email protected], 202-662-1869. You may also mail your responses to
Mark Pickett, American Bar Association, 9th Floor No. 960, 740 15th Street NW,
Washington DC, 20005.
Name: Bettie L. Wells, General Counsel, Texas Board of Pardons and Paroles
Date: January 22, 2013
The Board of Pardons and Paroles Clemency Powers and Authority
1. Pursuant to Article 4 section 11 of the Texas Constitution, the Board of Pardons
and Paroles (Board) has the responsibility of recommending and advising the
Governor on clemency issues. Please describe the process by which the Board
makes clemency decisions in both death penalty and non-capital cases.
Please refer to 37 TAC Chapter 143; and Board Directives 143.300 Clemency
for Capital Cases, 143.350 Full Pardon and 143.350 Reprieves – Family and
Emergency Medical. All of these documents can be retrieved from a link on
the agency’s website.
a. Are all members of the Board required to meet to discuss the clemency
application?
Texas Government Code Section 508.047(b) does not require the
Board to meet to perform the member’s duties in clemency matters.
b. Must the board vote unanimously to recommend clemency decisions?
Texas Constitution, Article IV, Section 11, requires a majority of the
Board to recommend clemency for the Governor to grant clemency.
Clemency Petitions and Clemency Interviews, Meetings, and/or Hearings
1. Please identify and explain all laws, rules, procedures, standards, guidelines, and
practices governing an individual’s eligibility to file a clemency petition in a
death penalty case.
The specific laws and procedures are outlined in 37 TAC §§143.43 and
143.57; and Board Directive 143.300 Clemency for Capital Cases.
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a. Who is eligible to file a clemency petition on behalf of the accused?
Attorney or private citizen advocate.
2. Please identify any filing deadlines for clemency applications in death penalty
cases, and relevant laws, procedures, standards, guidelines, and practices
concerning those deadlines.
The specific laws and procedures are outlined in 37 TAC §§ 143.43 and
143.57; and Board Directive 143.300 Clemency for Capital Cases. A
clemency application for a capital case must be submitted 21 days prior to
the execution date and supplemental information must be submitted 15 days
prior to the execution date.
3. 34 TAC § 143.57(e) permits a person seeking a Board recommendation of
commutation of the death sentence to request an interview with a member of the
Board. Please identify any additional laws, rules, procedures, standards,
guidelines, and practices governing clemency interviews, meetings, and/or
hearings.
37 TAC § 143.43(e) is the procedure for an interview when the person is
requesting a reprieve and Board Directive 143.300 Clemency for Capital
Cases.
a. Please describe the process for a clemency petitioner to request an
interview with the Board.
An attorney may request an interview in the clemency application or
the offender may request it during the interview conducted by the
Institutional Parole Officer.
b. Are clemency petitioners in death penalty cases guaranteed interviews,
meetings, and/or hearings on the merits of their request? If not, please list
cases where the Board has granted an interview, meeting, and/or hearing
even though it is not required.
Yes, when an interview is requested. When an attorney or advocate,
acting on behalf of the offender, or the offender requests an interview,
37 TAC §§143.43(e) and 143.57(f) provides that the Presiding OfficerChair shall designate at least one member to conduct the interview.
No, when a hearing is requested. Per 37 TAC §§143.43(f) and
143.57(g), in lieu of making a recommendation to recommend or not
recommend clemency, the Board may set the matter for hearing.
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c. 34 TAC §143.57 requires at least one Board member to conduct a
requested interview. Do any additional rules, policies, or standards exist
requiring the presence of a majority of or all Board Members during
clemency interviews, meetings and/or hearings? If not, please describe any
instances where some or all of the Board has been present during
clemency interviews, meetings, and/or hearings.
Per 37 TAC §§143.43(f)(3) and (g), and 143.57(g)(3), the Board may
conduct a hearing with all the board members present which is
considered an “open meeting.”
d. Are death-row inmates represented by counsel at clemency interviews,
meetings, and/or hearings? Please identify any applicable laws, rules,
procedures, standards, guidelines, and/or practices.
An attorney or advocate, acting on behalf of an offender, may appear
at a hearing.
e. Does the Board discuss the case with the petitioner’s family and friends?
No. But the Board receives and considers correspondence and/or
phone calls from family members or friends.
f. Does the Board discuss the case with the victims or the victims’ family?
No. But the Board receives and considers correspondence and/or
phone calls received from the victim’s family.
g. Does the Board discuss the case with the former prosecutor and/or defense
attorneys who handled the case?
No. But the Board receives and considers correspondence from the
prosecuting attorney.
h. Does the Board discuss the case with prison officials and/or law
enforcement?
No. But the Board receives and considers correspondence from the
sheriff and police chief. And, the Board receives information from
prison officials.
i. If/when interviews, meetings, and or hearings are held, are they conducted
publicly? Is the content of the meeting later available to the public?
In Texas, when the Board meets in a hearing, it is an “open meeting”
and the public may attend. See 37 TAC §§143.43(h).
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4. Are clemency petitioners notified of the date, time, and location of the interview,
meeting, and/or hearing?
Yes.
5. Where are the interviews, meetings, and/or hearings conducted?
Interviews conducted by the Board member are conducted at the death row
unit, Polunsky Unit, TDCJ Correctional Institutions Division, in Huntsville,
Texas. The last hearing was conducted in Huntsville, Texas.
6. What is the structure of the interview, meeting, and/or hearing?
The only requirements identified in 37 TAC §143.43(g) is to allow the parties,
offender and his attorney or advocate, trial officials, and the family of the
victims to appear before the Board to present information.
a. What is the role of petitioner’s counsel?
To present information and arguments on behalf of the offender.
b. Can the clemency petitioner and/or his/her counsel make a statement?
Yes.
c. Can the clemency petitioner and/or his/her counsel present evidence,
including witnesses, in support of the petition?
Yes.
d. Can the clemency petitioner and/or his/her counsel cross-examine
witnesses?
The rules do not provide for the offender, attorney or private citizen
advocate to cross-examine witnesses.
7. Once the final interview, meeting, and/or hearing has been held, how long does it
take the Board to reach a final decision on the clemency request?
If an interview is conducted, the Board renders it decision 2 business days
prior to the execution date. If a hearing is conducted by the Board, 37 TAC
§143.43(j) require the decision to be rendered within a reasonable time after
the conclusion of the Board’s deliberations.
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8. How many death penalty clemency interviews or hearings have been held since
the Board was granted recommendation authority over clemency cases?
The Board conducted one hearing, and scheduled 87 interviews since 1999.
The Board’s Scope of Review of Applications for Clemency
1. Please identify and explain any laws, rules, procedures, standards, guidelines, and
practices governing the scope of review that should be conducted by the Board
when assessing clemency applications. For example, are there certain documents
the Board is required to review, is there a particular formula (as is the case with
determining parole) that the Board will use to weigh various factors?
There are no constitutional or statutory provisions governing the scope of
review for the Board when assessing clemency applications.
2. Please describe the Board’s scope of review actually performed when making
clemency decisions. Where possible, please provide examples of individual cases
that illustrate how a factor (such as age, mental illness, or evidence of innocence)
was considered.
The Board reviews and considers the clemency application and attachments
and/or exhibits; all documents received from the county of conviction, e.g.,
judgment, sentence, police report, autopsy report, etc.; prison records which
includes demographic, criminal history, medical, etc.; internal staff and legal
memos; letters from trial officials, family members of the victim and death
penalty opponents; other information provided by the offender during the
interview, e.g., personal history (residence, education, employment, military),
substance abuse, physical/mental history, social history and marital and
family history and institutional adjustments; and if a hearing is held, all
information, evidence and arguments presented during the hearing.
a. Does the Board consider any internal polices? If so, what are they?
See Board Policy BPP-POL. 143.200.
b. Does the Board consider patterns of racial or geographic disparity in
carrying out the death penalty?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
c. Does the Board consider age at the time of offense?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
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d. Does the Board consider such issues as mental retardation, mental illness,
or competency to be executed?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
e. Does the Board assume that the courts have reached the merits on all
issues bearing on the death sentence?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
f. Does the Board consider evidence of the inmate’s innocence not raised at
trial?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
g. Does the Board Consider lingering doubts of guilt?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
h. Does the Board consider all mitigating evidence, regardless of whether it
was raised at trial?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
i. Does the Board consider the petitioner’s possible rehabilitation and
performance while on death row?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
j. Does the Board consider claims that were not necessarily litigated on the
merits? With or without the existence of new evidence?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
k. Does the Board consider claims that were barred in court proceedings due
to procedural default, non-retroactivity, abuse of writ, statute of
limitations, or similar doctrines?
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If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
l. Does the Board consider constitutional claims whose merits the federal
courts did not reach because they gave deference to possibly erroneous but
not “unreasonable” state court decisions?
If the information is contained in a document provided to the Board,
the Board Members will review and consider the information.
3. Does the Board ever consult with the Governor prior to issuing a recommendation
to deny or grant clemency? If so, please provide examples and describe the
manner by which this consultation is conducted.
No.
4. On average, after receiving a complete application requesting clemency, how long
does it take the Board to reach a decision?
A clemency application for a capital case must be submitted 21 days prior to
the execution date and supplemental information must be submitted 15 days
prior to the execution date. Board Directive 143.300 Clemency for Capital
Cases requires the Board to vote two business days prior to the execution
date.
a. How long does it take the Board to notify the petitioner of its decision?
The Board notifies the attorney, advocate or offender the same the
day the decision is rendered.
Documentation for Clemency Requests
1. 34 TAC §143.57 permits the Board to consider requests for the commutation of a
death sentence to a sentence of life imprisonment or the appropriate maximum
penalty upon the written request of a convicted person or a representative. Please
identify and explain all additional laws, rules, procedures, standards, guidelines,
and practices governing the types of documents that should be provided to the
Board to assist in assessing death penalty clemency petitions.
There are no constitutional or statutory provisions governing the types of
documents that should be provided to the Board to assist in assessing death
penalty applications. In addition to 37 TAC §143.57, 37 TAC §143.42
identifies specific information that should be included in the capital case
clemency application for requesting a reprieve.
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a. Please include copies of any standard forms required in clemency
applications.
There are no standard forms for death penalty clemency requests.
b. What is the typical page length of a clemency petition for a death penalty
case?
The applications range from 30 – 50 pages and up to 100 when
including the exhibits.
2. 34 TAC § 143.57 permits the Board to consider requests for the commutation of a
death sentence to a sentence of life imprisonment or the appropriate maximum
penalty upon receipt of a request of a majority of the trial officials of the court of
conviction. Please identify and explain all additional laws, rules, procedures,
standards, guidelines, and practices governing the documentation that should be
provided to the Board from the trial officials.
There are no constitutional or statutory provisions governing the types of
documents that trial officials should be provide to the Board.
a. Please include copies of any standard forms required.
There are no standard forms for death penalty clemency requests.
b. Please specify which individuals are considered a part of the “trial
officials of the court of conviction.”
Judge, District Attorney, Sheriff, Police Chief.
c. How many requests for clemency in death penalty cases has the Board
received from majority of trial officials?
None that we can recall.
3. What documents, if any, are applicants prohibited from providing to the Board
with a clemency application?
None.
Requests for Reprieves
1. Pursuant to Article 4 section 11 of the Texas Constitution, the Governor is
permitted to grant reprieves of executions for up to thirty days. Please describe
the role of the Board in relation to this power of the Governor.
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The Board has no role in relationship to the Governor’s power to grant a
one-time thirty day reprieve.
a. Does the Governor consult with the Board regarding requests for
reprieves? If yes, what type of information is requested? Please provide
examples if possible.
N/A
b. How often has the Governor granted a request for a reprieve of execution
since Texas has reinstated the death penalty? Of those cases, how many
has the Board later granted some additional form of clemency?
The Governor granted 6 reprieves since 1992. No other clemency was
granted in these cases.
Membership of the Board
1. Please identify and explain any laws, rules, procedures, standards, guidelines, and
practices governing the Governor’s appointment process for the Parole Board of
the Texas Board of Pardons and Parole.
Texas Constitution Article 4, Section 12, authorizes the Governor to make
appointments to the state and district offices.
a. How are members of the Board selected to serve?
The appointment process is outlined on the Texas Governor’s website.
b. Please describe any necessary minimum qualifications for Board
members.
See Texas Government Code §508.032 for Requirements for
Membership.
c. Please describe considerations made by the Governor when designating
the Board’s presiding officer.
The appointment process is outlined on the Texas Governor’s website.
2. Please identify and explain all laws, rules, procedures, standards, guidelines, and
practices governing conflicts of interest among the Board members.
Texas Government Code §508.033 entitled Disqualifications and 37 TAC
§150.055 Conflict of Interest Policy.
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a. What methods are used to resolve conflicts of interest among Board
members and who is responsible?
37 TAC §150.055 Conflict of Interest Policy require the board
member to disqualify or recuse themselves from voting on the case.
b. Is any group of individuals explicitly prohibited from serving on the Board
due to a potential conflict or for other reasons?
See Texas Government Code Section 508.033(c), (d) and (f).
Politics and Clemency Decisions.
1. Please identify and explain all laws, rules, procedures, standards, guidelines, and
practices intended to insulate clemency decisions from political considerations or
impacts.
Prior to the change in the Article 4, Section 11 of the Texas Constitution, the
Governor had the sole authority in clemency matters. In 1936, the Texas
Constitution was amended requiring a written signed recommendation and
advice of the majority of the Board before the Governor grants clemency
required except for the one-time 30 day reprieve in capital cases.
Final Decisions on Clemency
1. Please identify and explain any laws, rules, procedures, standards, guidelines, and
practices governing notification to the Board of the Governor’s final decision on a
clemency issue.
Texas Code of Criminal Procedure Article 48.02 requires the Governor to
file reasons for granting clemency with the office of the Secretary of State.
a. Do specific deadlines exist from when the Governor receives a
recommendation to when a final decision must be reached? If so, what are
they?
There is no constitutional or statutory deadline.
b. Does the Governor consult the Board when deciding to accept or reject a
recommendation for clemency? If yes, please provide examples and
identify any rules, guidelines, or internal policies governing this
consultation.
There is no constitutional or statutory requirement for the Governor
to consult the Board prior to making a clemency decision.
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c. Is the Governor required to notify the Board of his/her acceptance or
rejection of the Board’s recommendation of a clemency case? If not,
please provide examples where s/he has.
There is no constitutional or statutory requirement. However, when
the Board recommends clemency, the Board is notified, in writing, of
the Governor’s decision.
Attached, please find a copy of the full ABA Recommendations for the chapter on
clemency. If you have any additional comments with respect to the
recommendations, please feel free to include them.
Please do not hesitate to contact us if you have any questions or need clarification.
We always welcome any additional comments or feedback you may have.
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