THE ADMINISTRATIVE PROCEDURE FOR SECURING A POST CONVICTION SENTENCE REDUCTION AND RELATED RELIEF
by Bill Habern and Sean Buckley
Habern, O'Neil & Buckley L.L.P.
Attorneys and Counselors at Law
1 (888) 9HABERN
To speed transmission time exhibits are available in the download version only.
The Administrative Procedure for Securing a Post-Conviction Sentence Reduction, and
Related Relief (1)
In November, 1991 the VOICE FOR THE DEFENSE published an article by Bill Habern discussing the administrative procedure for attempting to secure a reduction of an imposed sentence-commonly known as a "sentence cut." While the administrative procedure has remained essentially the same over the last ten years, there have been some minor changes. Because little has been written on sentence reductions during this time, and due to the continued interest in this remedy among individuals sentenced to prison terms, we decided it was time to again review the administrative rules and policies that attach to this procedure, which is officially called "Application for Commutation of Sentence."
I. The "Sentence Cut"
When inmates and their families ask us about the prospect of getting a sentence cut, the first thing we want them to understand is that sentence cuts are extremely difficult to obtain. The current figures from the Governor's Criminal Justice Policy Council reflect just how rare they really are. (2)Over the past almost thirty years, our office has been successful in less than ten attempts to get the Governor's Office to grant this relief. Before an application even gets to the Governor's Office, it must get past the Parole Board. In the past two years, we have only found one case where we were even able to obtain the required recommendations from trial officials, which enabled our application to get past the Board and into the Governor's office, where it now awaits a final decision. The point here is that obtaining the necessary recommendations from trial officials is extremely rare. Once obtained, and an application filed, the relief is seldom granted.
The Administrative Rules of the Texas Board of Pardons and Paroles (hereafter called "Board Rules") dealing with this procedure are located at ��143.51 through 143.58 (Board Rules as revised 04/00). Initially �143.51 indicates:
"Except in cases of treason and impeachment, upon recommendation of the board, the governor may grant a commutation of sentence." (Texas Constitution, Article IV, �II).
Section 143.52 begins detailing the actual procedure for obtaining commutation of a felony or misdemeanor sentence. Before discussing the practical application of this section we should examine what the rules in this section say. This section states:
a) The board will consider recommending to the governor a commutation of sentence upon request accompanied by the written recommendation of a majority of the trial officials.
b) If the convicted person has the recommendation of two of the trial officials and no written communication is received from the third trial official, the board shall give the remaining trial official at least 10 days notice that such a clemency recommendation is being considered by the board. (see Texas Code of Criminal Procedure, Art. 42.18.�8(i)) (emphasis added) (3).
c) In cases tried prior to the tenure of the present office-holders, the recommendations of persons holding such offices at the time of the trial of the case may be used to bolster and support the recommendation of the present trial officials, if in compliance with the requirements of subsection (d) of this section.
d) The requirements of a recommendation of trial officials for commutation of sentence must include the following:
(1) a statement that the penalty now appears to be excessive;
(2) a recommendation of a definite term now considered by the officials as just and proper; and,
(3) a statement of the reasons for the recommendation based upon facts directly related to the facts of the cases and in existence, but not available to the court or jury at the time of the trial, or a statutory change in penalty for the crime which would appear to make the original penalty excessive.
(e) If the convicted person is not confined in the Texas Department of Corrections, a certified copy of the judgment and sentence must be furnished. (Emphasis added). (4)
There is one other vehicle for getting a commutation request considered. The governor can make a direct request to the Board that such consideration be given. Section 143.58, "Request of the Governor" states:
The board shall investigate and consider a recommendation of commutation of sentence in any case, upon the written request of the governor.
(Texas Code of Criminal Procedure Article 42.18, �18 [Tx Board admin. rules 4/00 ed.]) (5)
B. Summary of the Application Requirements from a Practical Standpoint
(and what you need to know that's not in the rules)
The initial section of these rules excludes the crimes of treason and impeachment from qualifying for relief. The real "meat" of the rule begins with �143.52 (a). This section begins by informing the reader that two things are needed to file for relief.
A "REQUEST" MUST BE FILED ASKING THE BOARD TO CONSIDER A SENTENCE REDUCTION.
A "request" is another word for an application or petition. What the statute doesn't tell the reader
is that this "request" must be filed on the Board's official "form." This form can be obtained by
calling the Austin Board's Executive Clemency offices at (512) 463-1679. A sample copy of this
form is an attachment to this article. The need to request this form is not mentioned in the text of
the above rules, and for many years no such form existed. Lawyers just developed their own form
that complied with the rules of the Board. That is no longer the case. Trying to file for this relief
without including the official form will result in your request being withheld from the Board until
the form is filed.
Before counsel even starts to compose the "request," he or she should confirm that they have the support of at least two of the three "trial officials". Trial officials are as follows:
1) The current elected judge of the court where the conviction was had.
2) The current elected D.A ( the recommendation of an assistant D.A. is not sufficient).
3) The current elected sheriff of the county where the conviction occurred.
4) Under �143.52(c) the Board affords the option of also include the recommendations of those trial officials who were in office at the time of the conviction; however, obtaining such additional recommendations is sort of like learning there is gravy to put on the meat. Such additional recommendations, without including at least two from current trial officials, are a waste of time. The meat in these efforts are always considered the current officials-those from yesterday are the gravy.
It is always best to have recommendations of all three trial officials, but in the event only two can be obtained, counsel should carefully attempt to ensure that the third trial official (who did not agree to make a recommendation) agrees that he or she will not object or protest the effort when that person is contacted by the Board (they will be contacted under the ten day advance notice rule found in �143.52(b)). An objection or protest by the third trial official can cause a negative response from the governor's office or from board members when considering a vote on the application.
Another unwritten requirement applies to the filing of recommendations by trial officials. As reflected in � 143.52 (d) of the rules, these recommendations must contain specific and certain elements that this article will later discuss. The unwritten rule counsel needs to be aware of is that each recommendation must be written on the individual letterheads of each trial official, and forwarded to the Board in the official envelopes of the individual trial officials.
We suggest that if counsel has been successful in getting trial officials to agree to supply letters of recommendation to the Board, counsel should politely request that the trial officials copy counsel when their individual letters are forwarded to the Board. In fact, we suggest that when counsel is in discussion with the trial officials about providing recommendations to the Board, they afford those officials with a sample recommendation. More about this later. The point here is that although the rules fail to state that the recommendations must be forwarded on the individual trial official's stationary and mailed by those trial officials, those actions are necessary requirements.
This office has learned that dealing in administrative legal matters that there is always an undercurrent of "politics" always near the surface. When we are employed to evaluate the chances of obtaining the recommendations for a sentence cut, it is our practice when approaching trial officials outside our immediate home jurisdiction to employ local counsel in the jurisdiction where trial officials must be approached. What we look to when procuring local counsel is someone who we believe to be politically mature enough to know how to approach the trial officials in as positive a way as possible. Our experience teaches us that the most important element to collect is the recommendations of the trial officials. Without those, there is no point in going forward. This effort is dead.
We have also found that obtaining sentence cut recommendations from trial officials in the larger cities in Texas is much more difficult than obtaining them from officials in smaller, more rural areas. While it is not unheard of to get recommendations from officials in large urban areas, the smaller jurisdictions seem to have a more personal knowledge of the offenders, their families, and the cases leading to the convictions.
Section 143.52 (d), subsections 1 through 3 set forth the necessary elements of each recommendation. This material is also noted on the Board's "form" (the same form that isn't mentioned in the rules, even though it's required). Let us suggest how a trial official's recommendation should be prepared so that it will satisfy this section of the rules:
1) The recommendation should begin by stating the name of the person convicted, the cause number, the court of conviction, and the current length of the sentence originally imposed. Follow that by:
2) stating that this sentence now appears excessive; and then,
3) stating a recommendation that the sentence of "X years" be reduced to a specific sentence of "Y years," and that such a reduction in sentence is considered just and proper; and then,
4) a paragraph stating that the basis of the above recommendation is that:
(a) List facts available at the time of trial, but not available for consideration by the court or jury; or
(b) include a statement that a statutory change in the penalty for the specific crime has been made by the legislature, and that the current sentence now appears excessive in light of that legislative change.
A problem commonly emerges when attempting to persuade trial officials into recognizing a basis for a sentence cut recommendation. Most often, trial officials concerns center around the issue of what serious facts were available at the time of trial but not presented to the trier of fact, and would those facts, if known, made a difference in the sentence that was imposed? Over the years we have discovered that this requirement within the rule has been allowed a degree of flexibility. The following are some situations we have had success with over the years:
1) Psychological, psychiatric, or physical aspects attending the applicant that would have cast a different light on the way punishment for the crime was considered, had they been known at the time of trial or plea. This information could present itself through forensic tools now available, but not available at the time of trial.
2) Evidence of mitigation and/or reduced significance of the applicant's role in the offense, which lessens the culpability of the applicant, and which had not been known or discovered at the time the applicant entered his plea or was found guilty. For example, what if the applicant had been cooperating with authorities in another jurisdiction, and this cooperation was not known to the prosecutors in the jurisdiction where the conviction occurred. Or, where after a co-defendant has been convicted, it was learned that much of the inculpatory evidence attributed to the applicant was actually attributable to the co-defendant. Finally, what about the offender who has been in prison awhile, already lost an appeal and had writs denied based on new evidence. A sentence cut may be the vehicle by which to seek relief.
3) While it is uncommon, we have been involved in cases where the punishment assessed by a jury was so excessive that even the trial judge and assistant D.A. were offended, and agreed to request the sentence be reduced.
4) While we have never seen anyone try to use the suggestion we're about to make, we believe it would be a valid grounds for seeking relief. All to often in the past, judges and prosecutors have second guessed what a parole board would do in a specific case, and have crafted a sentence in anticipation of the defendant being paroled at a certain time. The most often cited example of this kind of prosecutorial or judicial error occurred during the early 1990s, when the Texas prisons were full and overcrowded. During this time, everyone assumed that a prison sentence was only worth one month of actual incarceration for each year imposed by the court. In about 1993, the Parole Board started to abandon this formula. The result was that many offenders got stuck with excessive prison terms that stemmed from trial officials' anticipation that the Parole Board would release inmates after earning one month for each year of sentence imposed. There are still some of these cases around, and it would appear in such circumstances that relief via an application for sentence reduction could be well-argued. We acknowledge that this might be considered a stretching of the rule that the basis for relief must be grounded in facts that existed at the time of trial, but which were not then considered by the court. It is our experience, however, that the Board will allow a degree of bending in the application of that rule.
When we file an application for commutation of sentence, we of course complete the Board's
form; we also include our own written application on the theory that the more positive
information we can provide the Board, the better the situation. We include in our application all
the details we can develop regarding why the sentence should be reduced. As to the form
application, we have been told by certain Board members that they do not much care for the
current board form, and would rather have the kind of information we supply in our supplemental
application. If we have copies of the trial officials' letters, we include those in our supplemental
application as exhibits. The supplemental application can contain additional information such as
prison adjustment, accomplishments while in prison, how the applicant has matured during
What Happens Once the Application and Recommendations are Forwarded to the Board's Office?
Once the application (or "request") is filed with the Board, (6) and the recommendations of trial
officials are forwarded to the Board, what happens next? The Board's staff will forward the
material to the first of all eighteen Board members. Each Board member will cast a vote
recommending or denying that the application be forwarded to the Governor's Office for
consideration. For a favorable recommendation to issue from the Board, a minimum of ten Board
members must cast favorable votes (ten votes represents a majority of the eighteen Board
members). Waiting for all the Board members to cast their votes can take weeks or at even
months. If the votes total a negative end, then that is the end of the effort, and the application is
denied. Without a recommendation from the Board, the application will not reach the Governor's
Office. It is not unusual for the Board member casting the initial vote on a sentence cut
application to afford counsel a face-to-face interview. (7) If such an interview is granted, it allows
counsel to plead the client's case in person. During this interview, it is common for a secretary to
be present with the Board member to take notes. These notes go into the file and are supposed to
be considered by other Board members as the application passes from one office to the next. It is
not common at all to be granted a face-to-face interview with board members other than the initial
voter. Our office usually attempts to contact each Board member by phone as the file passes from
one Board office to the next. This does not mean that we actually get to talk to each Board
member. Many Board members feel that once the initial contact and presentation is made with the
initial voter, counsel's one bite at the apple is complete. There are those Board members who will
return calls and allow additional input; however, this is not common. On rare occasions, during
the course of an application being voted, counsel might get a call from a Board member who has a
question about the application.
If the Parole Board votes the application favorably, then the file is forwarded to the Governor's Office where the final decision will be made. Getting to the Governor's Office does not necessarily mean that the application will be approved. It simply means the application has reached the last step in the process. We have had these applications sit in the Governor's Office for months prior to a final decision being reached. One must realize that reducing a sentence, particularly where it has been imposed by a jury (8), has substantial political overtones. There is no doubt that Board members as well as those in the Governor's Office are in tune with this reality.
II. Commutation of Remainder of Jail Sentence
and/or Fine after Reprieve (� 145.53)
This section applies where the offender has been granted a reprieve (9) from a sentence. The rules states:
"The board will consider recommending to the governor a communication of the time left to serve on a jail sentence and/or commutation of fine after satisfactory completion of a reprieve of the jail sentence and/or fine".
An example of the application of this rule might be where an offender is the only surviving relative (parent) of a minor child who may be suffering from a terminal illness or injury, and is in need of ongoing care. In that situation, if the benefit of society would be best served by allowing the offender to attend to the immediate needs of the child, and the offender is not considered a serious threat to society, the Board may (in a rare case) grant a ninety-day reprieve for family emergency(10) in order to allow the offender to attend to the needs of the child. If the reprieve is granted, and the critical needs of the child outlive the term of the reprieve, then the offender might consider filing for relief under this section. Were relief granted under this section, the offender could be afforded the opportunity to continue to remain in society and have the balance of the sentence commuted. This rule was adopted by the Board in 1976, and we are not aware of a single case where this relief has ever been granted.
III. Commutation for Jail Time Served before Sentence
for Felony Conviction (�143.54)
This section of the Board Rules offers a remedy for a clerical error or mistake that results in time credit being denied an offender. The rule states:
"The board will consider a written request for commutation on a felony conviction resulting in credit for time served in jail from the time of sentence only if the applicant has been continuously in jail during the entire period for which the application is made and only upon receipt in writing of the following information from the judge of the court of conviction:
(1) the name of the convicted defendant;
(2) the cause number and court in which the conviction occurred;
(3) a statement that it was the intent of the sentencing judge, at the time of sentencing, that the application be given credit for the jail time served, but that such credit was not given through oversight or error, as the case may be;
(4) a statement of the exact number of days, months, or years which should be credit on the sentence;
(5) a statement that the applicant was continuously in custody and in jail for the total credit period requested:
(6) a request that the board make favorable recommendation to the governor that such time credit be allowed.
(The provisions of this �143.57 adopted to be effective January 1, 1976, amended to be to be effective May 11, 1999, 24 TexReg. 3540; amended to be effective August 17, 1999, 24 TexReg 6113).
We can only speculate as to why this section of rules remains in these administrative procedures.
Normally this kind of problem (clerical error or mistake in the failure to grant jail time credit) is
now resolved by filing a motion for judgment Nunc Pro Tunc with the convicting court. We
speculate that when this rule was adopted in 1976, it was just prior to the substantial changes
made by the 60th legislature during the 1977 session. In fact, it has been twice adopted. Since
1976, several Court of Criminal Appeals decisions have suggested that use of the Nunc Pro Tunc
is the proper way to procure the same relief this rule purports to cover, including the most recent
which is Ex parte Davis, 964 S.W.2d 643 (Tex.Cr.App. 1998).
IV. Commutation for Time Out of Prison on Reprieve (� 143.55)
(Used for medical reprieves only)
(a) The board will consider a request for commutation for time out of prison on reprieve only for medical reprieves.
(b) A request for commutation for time out of prison on medical reprieve will be considered only if:
1) the inmate has returned to the Texas Department of Corrections: (11)
2) such commutation is recommended by the medical director of the Texas Department of
Corrections (12) and approved by the management of the Texas Department of Corrections;
4) the inmate has in all things complied with the rules of the hospital or institution and the rules of the Texas Department of Corrections (14) during the emergency medical reprieve,
5) Such commutation shall not exceed the actual amount of calendar time that the inmate is absent for the Texas Department of Corrections (15) on emergency medical reprieve.
To qualify for this relief the offender must have been granted an emergency medical reprieve under �143.34 (emergency medical reprieve) of the Board Rules. To obtain relief the applicant must obtain a form from the Board which must be requested and completed, although, again, the rules do not inform the reader such a form exits. Upon being granted such a reprieve, the offender is transferred to a designated medical care center. Upon his/her return to the prison, this rule is the one under which time credit for time spent in the medical facility should be requested.
It is uncertain whether this is a rule that is actively used. In the near thirty years this firm has been dealing with parole matters, we can not recall ever having applied for or having known of anyone who was granted relief under this rule, which leads us to the opinion that if this rule is much used, it is done so internally between the Board and the prison.
Our office gets numerous requests each week from Texas inmates regarding assistance in
obtaining a sentence cut. Over our length of practice we have averaged pursuing such a remedy
successfully at a rate of about one every three years. Without the cooperation of the trial officials,
relief under this administrative procedure is impossible, and pursuing it would be a waste of time.
Our successful efforts have, almost without exception, been the result of a fact situation which is
substantially outside the scope of the "usual set of circumstances". In those situations there have
been two or more trial officials who agreed that a particular sentence was excessive, would
recommend a reduced sentence.
If the necessary recommendations are procured, then the application form should be obtained from
the Board. Counsel should not only complete the form, but provide as much additional relevant
information about the client and the case as possible. Even aside from the strict rule-based
elements of the application, counsel should attempt to best inform the voting Board members as to
why relief should be granted. The sentence cut application process can be a complicated and
time-consuming effort which seldom leads to success. But even as rarely as this relief is granted,
having this remedy available in the proper case affords some individuals the only relief available
after appeals and writs have been exhausted. It is very often the last chance for someone to get
out from under the weight of an excessive sentence.
1. ) There is one section of this subchapter dealing with sentence commutation that is beyond the scope of this article. That is �143.57, Commutation of Death Sentence to Lesser Penalty. That section is substantial enough to justify a whole article unto itself, and will be left for another time.
2. ) At the time this article was being written, we contacted the Governor's Criminal Justice Policy
Council to obtain statistics on the number of applications for commutation of sentence that went
through the system in fiscal year 1999 (the numbers for fiscal year 2000 are not yet available). The
Governor's Criminal Justice Policy Council provided us with the following numbers:
Applications considered by full Parole Board FY 1999: 3
Applications recommended to governor for commutation of sentence, FY 1999: 2
Applications approved for commutation by governor, FY 1999: -0-
Applications denied FY 1999: 1
Applications pending, as of Sept. 2000: 2
The last time this office had the opportunity to review commutation figures was from data for the years 1988 through 1990. Those figures reflected that in 1988 only five applications were approved by the board, and of those five, four were approved by the governor. In 1989 only two were approved by the Board, and two were approved by the governor. In 1990 four were approved by the Board, but only two were approved by the governor. There was one recommended by the board which was still under consideration during the time of the inquiry in 1990. It clearly appears that the accepted practice in this state is that applications for commutation are rare, and it is highly uncommon for applicants to actually get this relief granted.
3. ) The copy of the Board rules supplied this office by the Parole Board incorrectly cites Art. 42.18 �8(i) Tx. Cd. Crim. Proc. as authority for this section. That statute was repealed over three years ago in Sept. 1, 1997. As we shall see however, the error in citing repealed authority is not the only problem present in the current version of this administrative rule. The copy supplied this office by the Texas Parole Board continually refers to the Texas Department of Justice, an agency which has also disappeared from the law of this state. We suggest that the statutory authority currently in effect for this administrative rule is located at �508.115(a) of the Texas Government Code. The contents required of such notice is now located at �508.115(d), Tx. Govt. Cd.
4. ) Oops, another small "hickey" in the rules. The Texas Department of Corrections has disappeared from the face of the earth. In Texas these days our clients are detained in the Texas Department of Criminal Justice- Institutional Division, but maybe no one has called that distinction to those employed by the state to keep these rules current. As will be noted in other footnotes, these rules often continue to refer to the Texas Department of Corrections when there is little doubt that the meaning should be the Texas Department of Criminal Justice- Institutional Division.
5. ) Again the same problem as pointed out in footnote 3, art. 42.18 of the Tx.Cd. Crim. Proc was repealed in 1997.
6. ) The recommendations and application should be forwarded to the Clemency Section of the Texas Board of Pardons and Paroles, at P.O. Box 13401, Capitol Station, Austin, Texas 78711.
7. ) Board members have an excessive docket to vote, and little time to complete their current duties. As a result, there are a few board members who honestly believe they no longer have the time to afford such interviews, but this is a small number .
8. ) Obtaining a sentence reduction in a case where the jury imposed a sentence is a very difficult undertaking. In fact, although there may have been a number of these granted, we can only identify one such instance in the last thirty years where we have personal knowledge that the application even reached the governor's desk. Our experience is that getting recommendations from trial officials in any case where a jury has imposed the sentence is a very difficult thing to accomplish. Trial officials are political animals. They generally express great difficulty agreeing to consider recommending a sentence cut where a jury (those persons from the community who voted the trial officials into office) have already made a collective decision about what a criminal sentence should be.
9. ) There are several types of reprieves the Board may grant to one serving a sentence. These rules are found at Subchapter "C", Reprieve, beginning at � 143.31 through 143.35 (Admin. Rules of the Tx. Bd.of Pardons and Paroles. 4-00 ed.). These include reprieve for family emergency, emergency reprieve to attend civil court proceedings, emergency medical reprieve, and reprieve of misdemeanor jail sentence and/or fine.
10. ) See Texas Board of Pardons and Paroles Administrative Rules �143.32 94/00 ed.)
11. ) Here again these rules refer to an institution which no longer exists.
12. ) Oops, same mistake again,
13. ) and again.,
14. ) and again,
15. ) and again.