You May Be Dead, But You Can Still Get A (Too Late) Pardon, Texas AG Rules
Abbott issued an opinion on the matter sought by Houston State Senator Rodney Ellis. Ellis was asking on behalf of Tim Cole, a Brenham man exonerated last year by DNA evidence for a rape he was convicted for in 1985 solely on the basis of the testimony of one eyewitness - the victim of the rape. Cole died in 1999.
Abbott's opinion said:
The Texas Constitution does not expressly address or limit the Governor's authority to grant a posthumous pardon. While a prior attorney general opinion concluded he could not grant a posthumous pardon due to the recipient's inability to accept it, modern United States Supreme Court decisions reject the common-law acceptance requirement that formed the basis of that opinion and the underlying Texas authorities.Governor Rick Perry, who had refused to pardon Cole based on those earlier AG rulings, put out a statement saying he was happy with Abbott's action.
"I'm pleased to learn that the Attorney General's ruling has opened the door to the ability to grant posthumous pardons," he said. "I have spoken with Tim Cole's mother about this good news, which finally gives his family the opportunity to officially clear his name. I hope the Board of Pardons and Paroles will act swiftly in sending a recommendation to my desk so that justice can finally be served."
By the way, efforts to get President Obama to grant a pardon to Galveston's legendary boxer Jack Johnson have also been hung up on the posthumous question. (Maybe not; see comments.) Abbott's opinion won't affect that effort, obviously.