Texas

The information on this page provides a brief overview of capital clemency in Texas and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information and sources, please see the full Texas Clemency Memo (November 2019) prepared by the ABA Capital Clemency Resource Initiative. 

Texas Capital Clemency Memo

The Power Defined

Article IV, Section 11 of the Texas Constitution gives the governor the power to grant clemency in all criminal cases with a written signed recommendation from the Board of Pardons and Paroles (“Board”) except in cases of treason and impeachment. The governor cannot act to grant clemency without a recommendation from the Board; however, the governor may choose not to grant clemency even with such a recommendation. In a capital case, the governor may grant one 30-day reprieve without action from the Board.

The Decision Maker(s)

Article IV, section 11 of the Texas Constitution grants the Texas Legislature the power to establish the Board of Pardons and Paroles. The Board has the responsibility of recommending and advising the governor on clemency issues. A majority of the Board must vote to recommend clemency in order for the governor to exercise his discretion in issuing a grant. One member is designated as the presiding officer, whose duties include reporting directly to the governor, developing and implementing Board policies, and serving as the administrative head of the Board.

The seven Board members are appointed by the governor with the advice and consent of the Texas Senate for six-year terms, but persons are permitted to submit their names for consideration of appointment. This application process for a Board position is outlined on the governor’s website.

How Petitions are Brought

There are four options under the Texas Administrative Code and the Texas Constitution for capital clemency in Texas: a 30-day reprieve request directly to the governor; a request to the Board for recommendation of commutation of sentence; a request to the Board for recommendation of reprieve from execution; and a request made by the governor to the Board to investigate a case and consider recommendation of a lesser sentence (a commutation). All but the last—the governor’s request to the Board for investigation and consideration of a recommendation of commutation to a lesser sentence—must be brought by the death-row prisoner or on his behalf by counsel. Typically, in death penalty cases, a death-sentenced prisoner will seek all three available forms of relief even if he only provides one set of supplementary materials or briefing to support the applications.

Governor’s 30-Day Reprieve

The governor can grant one reprieve for a period not to exceed thirty days in any capital case without a recommendation from the Board.

Commutation of Sentence

The Board will consider recommending commutation of a death sentence to life imprisonment or another appropriate penalty by way of: 1) a request from the majority of the trial officials of the court of conviction; or 2) a written request from or on behalf of the prisoner, giving reasons for commutation and stating the full name of the offender, county of conviction, and the execution date.

Reprieve from Execution

The Board will consider recommending a reprieve of execution to the governor on receipt of a written request on behalf of the petitioner. The same supplementary materials that are used in support of the commutation of sentence request are also used in support of a request for a reprieve; clemency applications usually ask the board to consider granting a reprieve as an alternative to a commutation. Petitions may request a reprieve in increments of 30 days.

Request of Governor for Commutation

The governor can, by written request, ask the Board to investigate and consider recommendation of a commutation of sentence in any case. This power has been used rarely, if ever.

Process for Bringing a Petition

Prior to submitting a clemency petition, counsel must register with the Board by faxing in an attorney registration form. This form must be re-submitted annually, and best practice is to do it at the beginning of each year. Note that any attorney filing a capital clemency petition in Texas must be licensed in Texas. Counsel must also fax a notarized fee affidavit, with sections to be completed certifying whether counsel is acting pro bono or for compensation (including counsel that will seek reimbursement under the Criminal Justice Act). The fee affidavit must then be attached to the top of the clemency petition.

Based on conversations with attorneys who represent clients in capital cases in Texas, the clemency application itself consists of the following:

• Documentation: Attach the fee affidavit to the top of the clemency petition. Additionally, certified copies of documents must also be obtained from the petitioner’s trial county and attached as exhibits (see below).
• Petition: Counsel’s contact information, including email address, should be on the front page of the petition, as well as the relief sought (i.e., commutation and/or reprieve). As discussed below, the body of the petition will then contain a narrative account of the petitioner’s plea for clemency; the format and content of this is up to the petitioner or their counsel.
• Exhibits: All clemency petitions must include the following certified documents from the trial county: (1) indictment, (2) judgment, (3) jury verdict, (4) sentence, and (5) execution warrant. These documents can be submitted altogether as one exhibit or separately as separate exhibits. Beyond that, exhibits are left to counsel’s discretion. Clemency petitions often include letters of support from the prisoner’s pen-pals, family, friends, and other supporters as one exhibit.

Note that the Board requires petitioners to print a complete copy of the clemency application (the clemency petition, required exhibits, and any additional information) for each individual Board member. Thus, counsel should be prepared to print and mail or hand-deliver at least twelve copies of the whole clemency application packet to the Board. The Board sends some of these copies on to the governor’s office. This is a significant clerical endeavor, so counsel should leave ample time for printing, organizing, and mailing to ensure that the Board receives the application prior to the deadline. The application must be received and file-stamped prior to or by the deadline, not just mailed by the deadline. For that reason, counsel should mail the application package with a service that provides a tracking number.

Hearing Practice

Both an interview with a Board representative and/or a hearing before the full Board can be requested as a part of the clemency petition. Although, in the opinion of experienced attorneys, a request for a live hearing should be considered, in the history of the modern death penalty in Texas, only one has been granted, in the case of Johnny Frank Garrett in 1992.

Interviews

According to the 2013 interview with general counsel of the Board, interviews with Board members are guaranteed if requested. The interview request should be included in the written application or any supplement filed in accordance with the Texas Administrative Code. When an interview is requested, the Board’s presiding officer shall designate at least one member of the Board to conduct the interview. Attendance at the interview is limited to the prisoner, the designated member(s) of the Board, Board staff, and TDCJ Correctional Institutions Division staff.  Experienced attorneys point out that, if they are going to make a request for a Board member interview, they should help their client prepare a presentation for that interview. The Board member will likely expect the prisoner to make a plea for mercy rather than asking the prisoner many questions.

Interviews are conducted at the Polunsky Unit, in Livingston, Texas.

Hearing

A clemency hearing may be held at the Board’s discretion to occur as soon as practicable after the request is made and at a location convenient to the Board and the parties before it. Invitations to attend the hearing and/or to present relevant information at the hearing are sent to the clemency petitioner, trial officials of the county of conviction, the attorney general of Texas, and any representative of victim’s family who have previously requested to be notified. The victim’s family will be informed of their right to submit written comments for Board review at the hearing.

All hearings are considered open sessions pursuant to the requirements of the Texas Open Meetings Act (the “Act”). For the limited purpose of discussing matters deemed confidential by statute or by the Act, the proceedings may be conducted in an executive session closed to members of the public. Only those persons whose privacy interests and rights to confidentiality may be abridged if the hearing is held open may meet with the Board in such a session. Otherwise, the public may attend all hearings.

Responding to a Petition

A Board decision on a clemency application is made by majority vote. If the Board holds a hearing on a clemency application, it will vote in open session under Texas’ open meeting laws. If a hearing is not held, however—which is the norm in capital clemency cases—the Board typically votes electronically by completing and sending the E-Voting Sheet to the BPP-Clemency Votes mailbox as it does not meet in-person to review clemency petitions. Unless otherwise specified by the Chair, the Board will vote at 1:00 PM two days prior to the prisoner’s execution date. The Board’s clemency administrator will inform the prisoner and prisoner’s attorney which Board members voted for or against which form of relief sought, likely by email. The reason for votes (either in favor of or against recommending clemency) are not disclosed.

If a governor chooses to act favorably on a Board recommendation for clemency, he must file reasons for the grant with the Office of the Secretary of State. The Board is required to keep records of their acts concerning clemency matters.

Current Clemency Decision Maker(s)

The Board

Current Board Members
Office Holder	Represents	Term Ends
David Gutierrez (Chair)	Gatesville	02-01-2021
D’Wayne Jernigan	Huntsville	02-01-2025
Carmella Jones	Angleton	02-01-2025
James LeFavers	Amarillo	02-01-2023
Brian Long	Palestine	02-01-2023
Ed Robertson	Austin	02-01-2021
Col. Lionel F. “Fred” Solis	San Antonio	02-01-2021

Each of the seven offices is managed by a Board member and includes two parole commissioners. The fourteen parole commissioners are hired by the presiding officer to assist the Board in deciding parole releases and revocations by serving as voting members on parole panels. Limited information regarding Board members’ and commissioners’ backgrounds is also available online at the Board website.

The Governor

Texas’ current governor, Greg Abbott, was elected in 2014 and has a strong record of conservative leadership as Texas’ longest-serving attorney general and a prior member of the Texas Supreme Court. His campaign stated: “Governor Abbott continues to fight to preserve our shared values—like faith, family and freedom—for future generations.” Governor Abbott is a strong supporter of the death penalty, though unlike the majority of his predecessors, he has granted clemency once in a capital case. On February 22, 2018, Governor Abbott granted a commutation to life in prison without parole to Thomas Whitaker after receiving a rare unanimous recommendation in favor of clemency from the Board. (See Clemency Grants, infra).

After a spate of mass shootings in Texas in 2019, and after the federal government announced its intention to introduce new death penalty legislation expediting appeals in certain capital cases, Governor Abbott tweeted out support for passing similar legislation in Texas. It is unclear if such changes will move forward, however, and advocates for criminal justice reform state that there is no need to further expand Texas’ use of the death penalty: Texas already considers a death with multiple victims an aggravator for purposes of a capital sentence, and its appellate process its appellate process already moves more quickly than in the majority of states with the death penalty. Moving the appeals process any faster, advocates say, will further increase the risk of executing an innocent person.

Significant Past Capital Clemency Decisions

Grants

• Henry Lee Lucas (Commuted)

In 1998, Governor George W. Bush issued his sole death penalty commutation to Henry Lee Lucas on recommendation of the Board, citing serious doubt concerning Lucas’ guilt in the crime for which he was set to be executed. Lucas famously confessed to multiple murders, for which he had received numerous life sentences. But despite his numerous confessions and convictions for other crimes, there was strong evidence that Lucas was in Florida at the time of the Texas murder for which he was sentenced to death. Furthermore, the only evidence tying him to that crime was Lucas’ own confession, which—along with many others—was later called into question and ultimately recanted. In discussing the case, Bush asserted, “I feel a special obligation to make sure the State of Texas never executes a person for a crime they may not have committed. I take this action so that all Texans can continue to trust the integrity and fairness of our criminal justice system.”

• Kenneth Foster (Commuted)

Governor Rick Perry’s only grant of capital clemency that was not issued in response to a Supreme Court decision came in 2007 in the case of Kenneth Foster, who was not the triggerman in a murder but was convicted due to Texas’ controversial “law of parties” statute. Under the law of parties, a defendant can be sentenced to death even if the defendant “did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.” In addition to being convicted under the law of parties, Mr. Foster was tried jointly with his co-defendant. Governor Perry expressly stated he commuted the sentence because of the joint trial, suggesting that the jury may have considered aggravation evidence regarding the codefendant in sentencing Foster to death. Governor Perry stated: “I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment. I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the Legislature should examine.” Through the 2019 legislative session, although bills have been repeatedly filed, none have passed either amending the “law of parties” to exclude “non-shooters” from the death sentence or prohibiting the joint prosecution of capital murder defendants.

• Thomas Whitaker (Commuted)

In 2018, less than one hour before Thomas Whitaker was scheduled to be executed, Governor Greg Abbott accepted the Board’s unanimous recommendation to commute Whitaker’s death sentence to life without parole. The Board had not made a recommendation for commutation since 2009 but based its recommendation in part on a plea for mercy by Whitaker’s father, the sole survivor of the attack that killed his wife and only other son and earned Thomas Whitaker the death penalty. Governor Abbott said his decision to commute Whitaker’s death sentence was based upon several factors, including the unanimous Board recommendation, the fact that the triggerman who killed the victims did not receive the death penalty, the surviving victim’s opposition to execution, and the fact that Whitaker waived all future claims to parole in exchange for life in prison. “The murders of Mr. Whitaker’s mother and brother are reprehensible. The recommendation of the Texas Board of Pardons and Paroles, and my action on it, ensures Mr. Whitaker will never be released from prison,” Governor Abbott said.

• Frances Newton (120-Day Reprieve)

 Acting on a Board recommendation, Governor Perry issued Frances Newton a 120-day reprieve on December 1, 2004—the same day as her scheduled execution—to allow the courts the opportunity to order a retesting of gunpowder residue on the skirt the defendant wore at the time of the murders and of the gun used in the murders. Newton had been convicted of the 1987 shooting of her husband and children.

The Austin Chronicle wrote, “[Newton’s] story is one more in a long line of Texas death row cases in which the prosecutions were sloppy or dishonest, the defenses incompetent or negligent, and the constitutional guarantee of a fair trial was honored only in name.” According to the prosecution theory, Newton was a cold-blooded killer who murdered her husband and children in order to collect the $100,000 life insurance from policies she’d recently taken out on their lives. However, post-conviction defense counsel presented a plausible alternative theory of the crime, arguing the victims were likely murdered by someone connected to a drug dealer to whom Newton’s husband owed $1,500. This theory, according to Newton’s attorneys, would explain the lack of physical evidence connecting Newton to the murders.

Testing on Newton’s skirt proved to be impossible, because it had been improperly stored, and further testing on the gun confirmed it was the pistol used in the murder of Newton’s husband and children. The state district court refused Newton’s attorneys’ request for additional testing. In April 2005, after the 120-day reprieve ran its course, the state district court rescheduled Newton’s execution date for September of that same year. The Supreme Court subsequently declined to hear two appeals, and the Board unanimously rejected a request for commutation. After Governor Perry declined to issue another stay, Newton was executed on September 14, 2005. Governor Perry’s office received more than 4,000 letters, faxes, e-mails, and postcards imploring him to commute her death sentence to life in prison. The day of her execution, approximately 50 people protested outside the Walls Unit in Huntsville, Texas.

Denials (where newsworthy or controversial)

Karla Faye Tucker was convicted of murder and executed in 1998. According to reports, while on death row, Tucker experienced a religious conversion and argued that her sentence should be commuted to life in prison so she could continue to do God’s work. A coalition of prominent figures advocated for Tucker’s commutation, including Pope John Paul II, Amnesty International, and, in particular, Pat Robertson, who broadcast a prison cell interview with Tucker on his show The 700 Club. However, the Board unanimously rejected Tucker’s clemency application and Governor Bush declined to grant her a stay of execution. Tucker was executed on February 3, 1998. Tucker’s case was noteworthy because she was the first woman to be executed in Texas since 1863, and only the second woman to be executed in the United States since the reinstatement of the death penalty in 1976.

John Frank Garrett was scheduled to be executed in January 1992 for raping and murdering a nun when he was seventeen years old. However, Governor Ann Richards granted Garrett a thirty-day reprieve at the request of Pope John Paul II. Mr. Garrett’s counsel argued that it would be unjust to execute him because of his insanity, and his case garnered support from several anti-death penalty groups, including the Catholic Diocese of Amarillo, 16 Catholic bishops, and the human rights group Amnesty International.

In response to Governor Richards’ reprieve, the Board held a hearing to determine if Garrett’s sentence should be commuted to life. However, the Board recommended to the governor that Garrett’s execution proceed with a vote of 17-0, with one abstention. Garrett was executed on February 12, 1992.

Leonel Herrera was executed on May 13, 1993, after the Supreme Court declined to hear four late-hour appeals. Herrera had been convicted of killing two police officers in 1981, though Herrera claimed that both murders had been committed by his brother, Raul, who died in 1984. Herrera supported his new innocence claim with polygraphs and videotapes of his family and Raul’s lawyer insisting that Raul had committed both murders.

Herrera’s actual innocence claim during federal habeas proceedings led to a landmark Supreme Court decision in which the Court determined that a claim of actual innocence based on newly discovered evidence was not grounds for federal habeas relief. Instead, the Court found that clemency was the proper avenue for actual innocence claims foreclosed by the courts.

Despite confessing to several robbery and assault charges, Shaka Sankofa (formerly known as Gary Graham) maintained he was innocent of the murder charge which earned him the death penalty until his execution in June 2000. Graham’s murder conviction was largely based on the single eyewitness testimony of a woman who observed the murder through her windshield while sitting in her car 30–40 feet away. Two other eyewitnesses who affirmatively stated that Graham was not the murderer were never interviewed by Graham’s trial counsel. Three of the jurors who voted to convict Graham signed affidavits saying they would have voted differently had all of the evidence been available.

Despite new evidence, both federal and state courts rejected Graham’s ineffective assistance of counsel claims. Governor Ann Richards granted Graham a reprieve in 1993, and Governor George W. Bush later stated that he was procedurally barred from doing the same, as Texas law only allows the governor to issue one 30-day reprieve without the recommendation of the Board. Governor Bush also emphasized that Graham’s case had been reviewed by 33 state and federal judges. The Board itself voted 14-3 against the 120-day reprieve, 12-5 against commutation to a lesser sentence, and 17-0 against a conditional pardon. After the execution, two Board members were recorded on film expressing shock, asserting that they had not known he had not been given an evidentiary hearing when they made their decision to deny clemency.

Napoleon Beazley was sentenced to death for a 1994 murder he committed in the course of a carjacking when he was seventeen years old. Beazley’s case gained notoriety not only because of his age at the time of his crime, but also because his victim was the father of a judge sitting on the Fourth Circuit Court of Appeals. The state district court judge who heard Beazley’s case asked the governor to commute his sentence to life in prison on account of his age at the time of his crime. The Board rejected Beazley’s application for commutation in a vote of 10–7. The vote was divided along racial lines with all six minority members of the Board voting for commutation, and all but one white member of the Board voting against the request. The Supreme Court also declined to stay Beazley’s execution with a vote of 3–3, with three justices having recused themselves based on their personal relationships with the victim’s son.

On the day of Beazley’s execution, his counsel once again petitioned the governor for a stay of execution. Counsel cited a Missouri Supreme Court stay granted that same day based on the argument that to execute juvenile offenders violated the Eighth Amendment’s provision against cruel and unusual punishment. Governor Rick Perry remained unpersuaded to issue another reprieve, and Beazley was executed on May 28, 2002. The Missouri stay of execution cited by Beazley’s attorneys would go on to result in the landmark Supreme Court decision Roper v. Simmons, which rendered capital punishment against juvenile offenders unconstitutional.

In 1993, Johnny Joe Martinez killed a convenience store clerk during a drunken robbery. Martinez, who had no criminal record prior to the crime, contacted the police and confessed to the murder shortly thereafter. While in prison, Martinez reconciled with the victim’s mother, who proceeded to write an emotional letter to the Board asking for clemency. The Board narrowly rejected Martinez’s application for commutation in a 9–8 vote. Those who voted for commutation cited both the letter and their general disbelief that Martinez continued to be a danger to society.

On August 20, 1992, Cameron Todd Willingham was convicted of setting the house fire that killed his three children. Willingham, who refused to plead guilty in return for a life sentence, maintained his innocence until his February 17, 2004 execution. Governor Perry refused to temporarily stay Willingham’s execution, despite the report of a leading forensic expert that sharply disputed the finding of arson by a Texas deputy fire marshal. In 2006, the Innocence Project submitted Willingham’s case to the Texas Forensic Science Commission, a commission created by the state legislature the previous year to investigate complaints of forensic negligence or misconduct in Texas criminal cases. Former Governor Rick Perry’s administration discounted the conclusions of the Commission, which agreed with advocates that the arson finding relied on flawed analysis. Perry replaced three members of the Commission, including its chairman, at a critical point in the Willingham investigation, and the new chairman put the investigation on hold, delaying the report’s release by more than a year. Defending his handling of the case in 2009, the governor declared that Willingham “was a monster.” Since the execution, a series of forensic experts have discredited the evidence shown at trial. The Board voted in March 2014 to deny Willingham a posthumous pardon.

Kelsey Patterson was found guilty of murder and sentenced to death in 1993. He was executed in 2004 after Governor Perry rejected a rare recommendation from the Board that his sentence be commuted to life, or his punishment be delayed, on the grounds of mental illness. Patterson’s case was notable because he had also been involved with two non-fatal shootings prior to the 1993 event, but he had been diagnosed with paranoid schizophrenia and was deemed unfit to stand trial. After the 1993 murders, Patterson was once again analyzed by a psychiatrist who also found him to be suffering from schizophrenia and under the delusion that he was being controlled by aliens.

Texas Resources

Click here to view Texas resources for download, including clemency petitions and other relevant practice materials. Please note that not all of the content will be visible to users who are not currently logged in or do not otherwise have practitioner-access to the website.

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