AUSTIN — Timothy Cole, who died serving time in prison for a rape he didn't commit, can be pardoned by Gov. Rick Perry after the state attorney general cleared the way Thursday.
“We've been seeking justice for Tim for almost 25 years,” said Cory Session, Cole's brother. “Our whole deal was to do exactly what (was) in many of Tim's letters he wrote — ‘I want vindication, exoneration and a full pardon.' This was the final act that he wanted.”
Cole, whose cause has been championed by state lawmakers and others, was convicted in the 1985 rape of a Texas Tech University student. He died in prison in 1999, at age 39, after an asthma attack caused him to go into cardiac arrest, Session said.
Cole was cleared by DNA evidence in 2008, and a state judge exonerated him in 2009. His family pursued a pardon, but Perry had said he didn't have the authority to grant one posthumously.
That changed Thursday, in what Perry called “good news.”
Answering a request for a legal opinion by Sen. Rodney Ellis, D-Houston, state Attorney General Greg Abbott noted that upon recommendation by the state Board of Pardons and Paroles, Perry is constitutionally entitled to grant pardons in all criminal cases except treason and impeachment. Even though a 1965 attorney general's opinion said a governor couldn't grant a posthumous pardon because the deceased person could not accept it, the law since has evolved, Abbott wrote.
The U.S. Supreme Court “has since recognized that ‘the requirement of consent (to a pardon) was a legal fiction at best,'” the opinion said.
Perry, who previously had met with Cole's family and spoke Thursday with his mother, Ruby Session, said in a statement that he hoped the board would quickly send a recommendation to his desk.
The Legislature last year approved a measure to increase compensation for people who are wrongfully convicted. Under the law, Cole's family would be entitled to $80,000 a year for each of the 13 years he was imprisoned, or more than $1 million, according to Ellis' office.
