Texas Attorney General Opinion: GA-0754 Page: 3 of 6
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The Honorable Rodney Ellis - Page 3
No Texas court has expressly rejected the idea that acceptance is necessary in order for a
pardon to be valid; however, the Texas cases have generally applied the acceptance requirement to
situations involving conditional pardons. See, e.g., Exparte Davenport, 7 S.W.2d 589, 591 (Tex.
Crim. App. 1927) ("It is essential to the validity of a conditional pardon that it be accepted by the
person in whose favor it is issued."); Ex parte Frazier, 239 S.W. 972, 973 (Tex. Crim. App. 1922)
(upholding Governor's revocation of a conditional pardon). While there may exist a need for
acceptance when conditions are placed on the pardoned recipient, there does not appear to be a need
for acceptance if no such conditions are present, such as in the instance of a posthumous pardon.3
See Wilson, 32 U.S. at 161 ("A pardon may be conditional; and the condition may be more
objectionable than the punishment inflicted by the judgment."); see also Biddle, 274 U.S. at 486-87
("So far as a pardon legitimately cuts down a penalty,... the convict's consent is not required.").
Given the shift in United States Supreme Court precedent that formed the basis of the prior Texas
decisions, it is possible that, were a Texas court to decide the issue today, it would reject the need
for acceptance of an unconditional pardon as the United States Supreme Court has done.
It is also worth noting that legislation recently enacted by the Texas Legislature appears to
recognize the shift in United States Supreme Court precedent. Amendments made to section
103.001 of the Texas Civil Practice and Remedies Code during the eighty-first legislative session
allow deceased persons, "including a person who received a posthumous pardon," to receive
compensation for wrongful imprisonment if certain conditions are met. TEX. CIV. PRAC. & REM.
CODE ANN. 103.001(a), (c) (Vernon Supp. 2009). Thus, given no express limitation in the
constitution for a posthumous pardon, the shift in United States Supreme Court precedent away from
the acceptance doctrine, and the recent legislative changes recognizing the Governor's authority to
grant a posthumous pardon, we believe a court would likely conclude that the Governor may grant
such a pardon without a constitutional amendment, assuming all other constitutional requirements
are met. In doing so, it would overrule Attorney General Opinion C-471.
Your second question asks whether the prior attorney general opinion concluding that the
Governor did not have authority to issue a posthumous pardon was "legally binding on the governor
on this issue." Request Letter at 4. While they are persuasive authority, attorney general opinions
are not binding. Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996). However, both courts and
state officials often use them for guidance on specific legal issues, especially when there is otherwise
limited authority addressing an issue. S. Tex. Coll. of Law v. Tex. Higher Educ. Coordinating Bd.,
40 S.W.3d 130, 137 n.1 (Tex. App.-Austin 2000, pet. denied). As discussed above, we find no
Texas case that addresses the authority of the Governor to grant a posthumous pardon. Based on the
common-law acceptance doctrine, Attorney General Opinion C-471 advised that "the Governor [has]
no power to grant a posthumous full pardon to a deceased convicted felon." Tex. Att'y Gen. Op. No.
C-471 (1965) at 2. However, in the forty-five years since opinion C-471 was issued, the
3Presumably rejecting the idea that acceptance is required for an unconditional pardon to be valid, at least nine
states, either through their governors or their boards of pardons and paroles, have recently granted posthumous pardons.
See Darryl W. Jackson, et al., Bending Toward Justice: The Posthumous Pardon ofLieutenant Henry Ossian Flipper,
74 IND. L.J. 1251, 1277 (1999). Two Presidents of the United States have likewise granted posthumous pardons. Id.;
Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush, N.Y. TIMES, Dec. 24, 2008, available at
http://www.nytimes.com/2008/12/24/washington/24pardons.html (last visited Jan. 6, 2010).(GA-0754)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0754, text, January 7, 2010; (https://texashistory.unt.edu/ark:/67531/metapth275650/m1/3/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.