After an Austin jury unanimously convicted Sergeant Daniel Perry of murder, it took Governor Greg Abbott less than one full day to call for his pardon.
Legal experts and lawmakers have described it as an unprecedented move that has injected politics into the parole and pardon system.
“I can’t imagine that there’s ever been a time when they’ve considered a pardon for someone who hasn’t even been sentenced yet,” Allison Mathis, a longtime public defender in Texas, told the Texas Observer.
In the days following Abbott’s public pledge to pardon Perry, unsealed documents from the case, including Perry’s web searches and text messages, would reveal that he had made racist comments, previously considered killing people involved with racial justice protests, and most inconveniently for Republicans who have jumped on the “anti-groomer” bandwagon, had inappropriate text exchanges with an apparent 16-year-old girl after searching for “good chats to meet young girls.”
“Ok so im 16 ill be 17 in 3 months u sure u want me,” wrote a user on Kik Messenger, an instant messaging platform with a troubled history of child exploitation scandals. “What state…Also promise me no nudes until you are old enough to be of age,” Perry said later in the same chat. “I am going to bed come up with a reason why I should be your boyfriend before I wake up.”
Since the damning documents were released, Abbott has been quiet on social media, where he first made clear his support for a pardon. It’s uncertain if Abbott intends to follow through with his pledge in light of the evidence, or whether he will even have the chance: The governor of Texas doesn’t have the power to arbitrarily pardon someone like the president of the United States does, they can only pardon someone upon recommendation from the Texas Board of Pardons and Paroles. And there’s a good reason for that.
“I can’t imagine that there’s ever been a time when they’ve considered a pardon for someone who hasn’t even been sentenced yet.”
The Texas Board of Pardons and Paroles as it exists today was created by a state constitutional amendment in 1935 after the controversial tenure of Governor Miriam A. “Ma” Ferguson, who to this day holds the national record for the number pardons issued while in office. The first woman governor of Texas, Ferguson was elected after her husband, James E. “Pa” Ferguson, was impeached and removed from elected office after the Texas Senate sustained five charges against him for the misapplication of public funds. The extraordinary number of pardons issued by Ferguson—an average of 100 pardons a month—and her relationship with a convicted criminal who was banned from holding office in Texas, led critics to accuse her of taking bribes and issuing construction contracts to friends of her husband. Though never proven, the rumors and accusations contributed to her electoral defeat in 1934 and the eventual reform of the pardon and parole system.
A 1935 constitutional amendment effectively took away pardoning power from the governor by making it subject to recommendations from the Texas Board of Pardons and Paroles, which for decades was composed of three appointees: one selected by the governor, one by the chief justice of the Texas Supreme Court, and one by the presiding judge of the Texas Criminal Court of Appeals. But that all changed in 1983, when the Texas Constitution was amended to expand the size of the board and grant appointment power to the governor with approval by the Senate. Now, Abbott and the Republican-controlled Texas Senate led by Lieutenant Governor Dan Patrick effectively hold all the cards when it comes to who sits on the board that’s responsible for deciding whether Perry deserves a pardon.
“It’s the illusion of there being checks and balances within the system, because it doesn’t actually exist,” Mathis said. “It needs to be a neutral and detached organization. But the governor has control over their jobs.”
Legal experts have expressed outrage and confusion at Abbott’s politicization of the pardon and parole process. “I think it clearly demonstrates that the conservatives have, by and large, abandoned the idea that they support law and order,” former Travis County Criminal Court Judge David Wahlberg told WFAA.
“It’s the illusion of there being checks and balances within the system, because it doesn’t actually exist.”
Typically, pardons are only considered and issued for people who have been sentenced and are already in prison. The Texas Board of Pardons and Paroles website says that “a full pardon will not be considered for an offender while in prison except when exceptional circumstances exist.” Conditional pardons are considered “only after minimum statutory parole eligibility has been attained,” while pardons for innocence require “either evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge indicating actual innocence.” A sentencing hearing has yet to be scheduled following Perry’s conviction.
Mathis told the Observer that this isn’t the first time Abbott has played politics with the Texas Board of Pardons and Paroles. In October 2021, the board had initially decided to unanimously recommend the posthumous pardon of George Floyd for a 2004 drug arrest in Houston, a process which was initiated by Mathis while she was working at the Harris County Public Defender’s Office. Floyd’s death at the hands of a Minneapolis police officer in 2020 is the very incident that sparked the national wave of protests in which Foster had taken part in Austin, protests which ultimately led to Foster’s death at the hands of Perry.
Abbott, who paid respects at Floyd’s funeral in Houston, remained silent on the recommendation to pardon Floyd for months amid a heated gubernatorial primary race where he faced challenges from far-right candidates. In December 2021, just weeks before the usual pre-Christmas pardon announcement from Abbott, the board suddenly reversed course, citing unspecified “procedural errors.” Mathis described the unexplained reversal as a “ridiculous farce.” In February 2022, Abbott suggested he would pardon 19 Austin police officers indicted on felony charges after being accused of excessive force during the 2020 racial justice protests should they be convicted. And in August 2022, Abbott appointed one of those indicted officers, Justin Berry, to Texas’ regulatory law enforcement agency, the Texas Commission on Law Enforcement. Trial dates have yet to be set for the indicted officers.
“Generally speaking, of course I am concerned about the governor’s willingness to intrude on pending criminal cases, and I don’t think anyone should have any confidence he isn’t going to do it again,” Travis County District Attorney José Garza told KVUE and the Austin American-Statesman.
The Observer spoke with two protesters from Austin’s racial justice movement about the potential pardon of Perry (they requested their names be replaced with aliases due to concerns for their personal safety). Both got to know Foster before his death and they told us a pardon would put the lives of other protesters at risk.
“It does send a message that if you can find yourself in a crowd of angry people and one of them happens to be armed then you can claim fear for your life, which is similar to the argument cops will use,” said a protester who goes by the name Box. “‘I feared for my life’ isn’t really a valid excuse in certain lines of work or all situations.”
“I think that Perry should be treated as equally as everybody else,” a protester called Chapo said. “He broke the law and the jury made the decision. I don’t think it should be overturned by somebody like Abbott. … And I can tell you this: If he is pardoned, there will be a big protest.”
When Foster was shot by Perry, he was open-carrying an AK-47 during a protest, but did not raise the gun out of the low-ready position. He was shot by Perry after Perry ran a red light and drove toward the crowd of protesters of which Foster was a part. Protesters surrounded the vehicle and then Perry shot Foster. Foster’s gun was recovered with the safety on and no round in the chamber. Perry claimed self defense. These facts raise questions and contradictions in the minds of protesters like Box and Chapo.
“I am concerned that people who agree with the pardon … will end up following him thinking they’ll get a pardon too.”
Box noted that protesters had faced threats prior to Foster being shot, including an incident when a man waved a gun at protesters. “I absolutely understand Garrett carrying, 100 percent and he was well within his rights to do so. It’s kind of like they’re saying it’s okay for us, but it’s not okay for you,” Box said. “And that’s terrifying when it’s coming from the state.”
Chapo described the tension between supporting open-carry laws and seeking a pardon for Perry as a “huge contradiction” which could even lead to others taking up arms against protesters.
“If the pardon happens, I am concerned that people who agree with the pardon and with what Perry has done will end up following him thinking they’ll get a pardon too,” Chapo said.
Ultimately, Abbott’s actions may be more about sending a message and playing politics than issuing an actual pardon, and things could turn on a dime.
As Rice University political scientist Mark Jones told KRLD regarding the board’s reversal of the George Floyd pardon: “The benefit for Abbott is Abbott was in a no-win situation. Now he is in a winning situation because he doesn’t even have to address the issue during the Republican primary … He can say I am going to wait and see what the pardon board says. This helps Abbott politically.”
Indeed, in Perry’s case, Abbott still has to wait for a recommendation from the board that he himself appointed. Only time will tell whether clemency will be granted. In the meantime, Abbott can reap the political benefits—and avoid the wrath of the likes of Tucker Carlson, who asked him on national television to pardon Perry—while simultaneously paving the way for a future excuse that it’s out of his hands should the political winds shift.
In response to a request for comment outlining the recently unsealed evidence regarding Perry’s and inappropriate texts with an apparent 16-year-old, the allegation that Abbott is playing politics with the pardon, and the suggestion that there are no real checks and balances due to the way the pardons and paroles board is appointed, a spokesperson for the governor said the following: “All pertinent information is for the Board of Pardons and Paroles to consider, as this is part of the review process required by the Texas Constitution.”
