Senator asks AG to rule on Cole issue
By Elliott Blackburn | AVALANCHE-JOURNAL
*Wednesday, July 15, 2009*
Story last updated at 7/15/2009 - 2:12 am
PDF: Request for opinion on the governor's authority to grant a pardon
to a deceased person and other related matters
A Houston senator has asked the state to take another look at a
40-year-old legal opinion blocking the pardon of an innocent man who
died in prison.
If Texas Attorney General Greg Abbott reverses the previous opinion, the
governor could pardon Timothy Brian Cole, a Fort Worth man who died in
prison after a Lubbock jury wrongfully convicted him.
Sen. Rodney Ellis, D-Houston, on Tuesday asked the Texas attorney
general's office whether existing Texas law and the state constitution
allows the governor to pardon someone who cannot accept the reprieve.
"We want a pardon for Tim Cole and we want it as soon as possible,"
Ellis said in a statement. "We're very optimistic that the Attorney
General will say that Governor Perry, just like the president, governors
of nine other states, and the Queen of England, can legally grant
The attorney general's office confirmed they received the opinion
request Tuesday afternoon.
Cole's mother, Ruby Session, kept her hopes up Tuesday.
"Cautiously optimistic as always," Session said. "I'm happy that it has
gotten to his office."
A Lubbock jury sentenced Cole to 25 years for the 1985 rape of a fellow
Texas Tech student. He maintained his innocence throughout his 13-year
Cole died of complications from asthma in December 1999.
The confession of another inmate and tests run in 2008 of DNA material
from the case confirmed Cole's innocence.
An Austin court legally exonerated Cole in April, making him the first
Texan to be cleared by DNA after death. Legislators recognized Cole's
innocence in bills passed during the past session. But a pardon from the
governor remains a priority for Cole's surviving family members.
Perry's office has relied on a 1965 attorney general's opinion that
ruled the governor could not pardon him.
The finding fit with once-common English and American standards of law.
Courts treated pardons like property - without someone living to accept
the pardon, Attorney General Waggoner Carr cited a 19th century case to
opine that a Texas governor could not grant one.
But U.S. courts and many states began abandoning that practice in 1927.
The Constitution, not property law, provided an executive's power to
pardon, one U.S. Supreme Court ruling found. A pardon took effect even
if the recipient did not want one.
Ellis last week released a finding by the Texas Legislative Council, a
research group that helps both chambers draft legislation, that said
that the more modern interpretation of the law made it possible for a
governor to pardon the deceased.
The senator criticized Perry's decision not to include the
constitutional amendment the governor said he needs to pardon Cole in a
short special session earlier this month.
"We can't wait another two years for the constitution to be changed so
Tim can be pardoned," Ellis said in the statement. "Hopefully the
attorney general will tell Gov. Perry he can grant the pardon so it can
be done ASAP."
Perry spokesman Katherine Cesinger noted last week that only the
attorney general's office may give legal advise to state officers.
Cole's pardon remained "an important issue" for Perry, Cesinger said
Tuesday in an e-mailed response to questions.
"We look forward to the attorney general's opinion," Cesinger said.
To comment on this story:
TEXAS/Abbott could reverse previous opinion to clear way for governor to
Source (Innocent project of Texas)