Senator Ellis Press Release

For Immediate Release
July 8, 2009
Contact: Tina Tran, (512) 463-0113

Texas Legislative Council Memo: Governor Can Pardon Posthumously

(AUSTIN) — Senator Rodney Ellis (D-Houston) today released a legal memorandum from the Texas Legislative Council that provides more evidence that the Texas Governor has the power to issue posthumous pardons. The Texas Legislative Council provides bill drafting and legal research services to the Texas Legislature. Senator Ellis requested the memo to determine if a constitutional amendment was needed for the governor to grant a posthumous pardon.

The issue has arisen out of the Timothy Cole case, who was convicted and sentenced to 25 years in prison for a rape he did not commit. He professed his innocence until he died in prison of an asthma attack in 1999. In May 2008, DNA evidence revealed that Tim Cole was innocent and that a man named Jerry Johnson was the true rapist.

In May, Gov. Perry signed The Tim Cole Act, which increased compensation for the wrongfully convicted and family members of persons who were posthumously pardoned. Unfortunately, a resolution which would have authorized a constitutional amendment to give the governor the power to grant posthumous pardons, failed to pass the House this past session.

Because the resolution did not pass, the governor has said he does not have the constitutional authority to grant Tim Cole a pardon. For that reason, Sen. Ellis asked Legislative Council for its opinion on the matter.

"I believe that the legal memo provides ample reason why the Board of Pardons and Parole can recommend, and Governor Perry can grant, a pardon to Timothy Cole," said Sen. Ellis.

"As the Legislative Council memo notes, two federal posthumous pardons have already been granted -- one by President Clinton in 1999, and the other by President Bush in 2008. The memo goes on to say that 'the governors of several states with constitutional pardon power provisions that are substantially similar to those in this state have granted effective posthumous pardons, including Massachusetts, Pennsylvania, and Oklahoma. The governors of Maryland, California, Arizona, Nebraska, and Nevada have also granted effective posthumous pardons.'

If the president of the United States and all of these other governors can grant a posthumous pardon, so can the governor of Texas," said Ellis.

"This opinion is important. It confirms what the Innocence Project of Texas has said from the beginning: the governor has the power to pardon Tim Cole, " Jeff Blackburn, executive director of the Innocence Project of Texas, said of the Legislative Council memorandum.

"We believe that the Governor wants to do the right thing. Hopefully this opinion will show him that he has the legal power to do so."

Link to Texas Legislative Council memorandum (pdf)