Clearing the Path to Posthumous Pardon

Cole

Attorney General Greg Abbott has concluded that a Texas governor may issue a posthumous pardon – even though the subject of the pardon wouldn't be alive to receive the good news. Issued Jan. 7, the opinion came in response to a request penned by Houston Sen. Rodney Ellis last summer questioning the governor's power to clear the record of an exonerated individual who has already died. Gov. Rick Perry's office had said his hands were tied by a legally binding 1965 A.G. opinion concluding that the law required the exonerated individual to be around to physically receive the pardon. But the previous opinion was not legally binding, Abbott has concluded, and the governor may clean the slate even after a person has passed on.

Now that Abbott has ruled, the field appears clear for Perry to finally pardon Timothy Cole, who was convicted of a 1985 rape in Lubbock that he did not commit. Cole died in prison in 1999 before he was able to clear his name, and last year he became the state's first person to be posthumously exonerated. But even that determination, made by Travis County District Court Judge Charlie Baird in February 2009, was not enough to earn Cole a pardon. Now, it seems Cole's family will finally get the relief they've been looking for. Abbott concluded that there is nothing in the Texas Constitution that would bar a governor from issuing such a pardon so long as the state's Board of Pardons and Paroles recommends the pardon be issued. "The plain language of the constitution does not expressly address whether the Governor may issue posthumous pardons," Abbott wrote. "However, because the constitution has given the Governor pardon power in all criminal cases except treason and impeachment and has not otherwise limited his authority to grant posthumous pardons, it could be interpreted as implicitly authorizing him to grant posthumous pardons in criminal cases, so long as all constitutional requirements are met."

The Innocence Project of Texas was thrilled with the outcome, which project founder and chief counsel Jeff Blackburn called the "final hurdle" to clearing Cole's name. The organization took Cole's case after Jerry Wayne Johnson, the person actually responsible for the rape of Michelle Mallin, contacted the group to confess his guilt. Blackburn said the group is now working on a pardon packet to be sent to the Board of Pardons and Paroles. In a statement, Perry said he was "pleased" that Abbott had "opened the door" for him to issue such a pardon. "I hope the [board] will act swiftly in sending a recommendation to my desk so that justice can finally be served," he said.