Cole Family Still in Search of a Pardon

Ellis, McClendon, and Veasey, with members of Cole's family -- including mother Ruby and brother Cory Session.

The family of Timothy Cole, who was wrongfully convicted and died in prison before he could be exonerated, traveled to the Capitol Wednesday to call on Gov. Rick Perry to grant Cole a posthumous pardon.

Perry has said he can't do so without a constitutional amendment -- although the family and a contingent of lawmakers disagree with that position, they say that if that's the case, Perry should add to the special session's call a proposed amendment for lawmakers to consider. Sen. Rodney Ellis, D-Houston, and his staff have done the research, Ellis said at an afternoon press conference, and, "in my judgement," the need to amend the Texas Constitution does not exist.

Cole died in prison after serving 13 years for a 1985 rape in Lubbock. DNA evidence has proven him innocent of the crime, and he was formally exonerated after a February hearing in the Travis Co. Court of Judge Charlie Baird. It was the state's first posthumous exoneration.

Since then Cole's family has been trying to secure an official pardon. Returning to the Capitol Wednesday -- which would have been Cole's 49th birthday -- Cole's brother, Cory Session, said he doesn't understand why Perry won't act. "He has the power to give himself the power to grant [Cole] a pardon," Session said. "Why we can't get the governor to do what he knows...he should be doing is beyond me."

Ellis said that Perry's office is relying on a 1965 attorney general opinion as support for the notion that his hands are constitutionally tied. But Ellis and Reps. Ruth Jones McClendon, D-San Antonio, and Marc Veasey, D-Ft. Worth, note that the opinion is just that, and is not binding. (Moreover, noted Ellis, the request for a posthumous pardon is not unique; to date, 10 such pardons have been granted in nine states -- including in Arizona, California, and Oklahoma.) Indeed, the opinion, by then-AG Waggoner Carr is brief: The posthumous pardon isn't possible because the inmate in question is dead, and thus "the pardon not being delivered to the convict during his lifetime, it could not be accepted by him," it reads.

But if that is all that is standing in Perry's way, the three lawmakers said he should move the proposed amendment (Senate Joint Resolution 1, by Ellis) onto the lawmakers' truncated special agenda. (Lawmakers considered a resolution during the regular session to allow the governor to issue such pardons, but the measure died along with dozens of other bills in the waning days of the session.)

Perry's office has not returned a phone call from NewsDesk, but spokeswoman Katherine Cesinger did tell the Quorum Report's John Moritz that Perry is "disappointed" the measure didn't pass this spring, but "[a]t this time, the governor does not intend to expand the call."