State v. Flood
This text of 814 S.W.2d 548 (State v. Flood) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION
Pursuant to Tex.Code CRIM.P.Ann. art. 44.01(a)(2) and 44.01(b) (Vernon Supp.1991), the State submits this appeal complaining of the trial court’s resentencing Robert Louis Flood, appellee. We reverse.
On February 15, 1971, appellee pled, and was found, guilty for possession of marihuana. Appellee’s punishment was assessed at four years confinement, probated. A little over a year later, it was determined that appellee had violated the terms of his probation, and he was sentenced to four years confinement. On September 18, 1974, then Governor Dolph Briscoe commuted appellee’s sentence to time served.
More recently, appellee filed a petition requesting re-sentencing. On October 31, 1990, a hearing was conducted in the trial court, pursuant to TexHealth & Safety Code Ann. § 481.110 (Vernon Pamph. 1991).1 Section 481.110 affords a person convicted before August 27, 1973, of an offense involving marihuana, the opportunity to petition the court in which the person was convicted, for re-sentencing in accordance with TexHealth & Safety Code Ann. § 481.120 (Vernon Pamph.1991) or § 481.121 (Vernon Pamph.1991). At the conclusion of that hearing, the trial court re-sentenced appellee to six months detention in the Harris County jail, with credit for time served.
In its first point of error, the State argues that § 481.110 is unconstitutional because it represents the mere re-codification of Tex.Rev.Civ.Stat. Ann. art. 4476-15, § 4.06.2
[550]*550In State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex.Crim.App.1973) section 4.06 was found to be unconstitutional. There, the Court of Criminal Appeals determined that re-sentencing pursuant to section 4.06 would result in a less severe punishment being imposed, Id. at 103, and that such re-sentencing constituted an extension of “commutation” (defined as a change of the punishment assessed to a less severe one). Id. The court determined that, in essence, the commutation of a sentence to those previously convicted was in actuality a mere gift of clemency. Moreover, re-sentencing, resulting in reducing a felony conviction to a misdemeanor conviction constitutes a partial pardon. The court noted that Tex. Const, art. IV, § 11 places the power of clemency in the governor. Id. at 101. The court concluded that: 1) any statute which in any way abridges or infringes upon a constitutional power granted to the governor would be unconstitutional; and 2) because the power of clemency has been conferred by the constitution on the governor, it cannot be exercised by the legislature. Id. at 104.
Upon comparison of Tex.Health & Safety Code Ann. § 481.110, and Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 4.06, it becomes evident that the State’s assertion is correct and the sections are substantially similar. Furthermore, the general provisions of the Health and Safety Code provide that it was enacted as part of this State’s continuing statutory revision program, with the objective to make the law more accessible without making substantive change. See TexHealth & Safety Code Ann. § 1.001(a) and (b) (Vernon Pamph.1991). Consequently, we find Tex. Health & Safety Code Ann. § 481.110 unconstitutional because only the governor, not the legislature nor the judiciary, has the power of clemency under the Texas Constitution.
The State’s first point of error is sustained.
Our determination that section 481.110 is unconstitutional does not necessarily resolve all issues in this cause. In two cross-points of error, appellee asserts that the re-sentencing constitutes an implied judgment of acquittal of the felony offense for possession of marihuana. Appellee further argues that federal and state constitutional prohibitions against double jeopardy bars this Court from revising the judgment and sentence of the trial court, even when the entry of judgment is improper.
We hold that any judgment rendered pursuant to section 481.110 is void. Further, we hold jeopardy does not attach to a void judgment. See Hoang v. State, 810 S.W.2d 6, 8 (Tex.App. —Dallas 1991, pet. filed).
Appellee’s cross-points of error are overruled, and this case is remanded to the trial court. Because the disposition of the State’s first point of error grants the State all relief requested, we need not consider its second point of error.
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814 S.W.2d 548, 1991 Tex. App. LEXIS 2112, 1991 WL 160443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flood-texapp-1991.