Texas Gov. Rick Perry cannot grant a posthumous pardon to a man who died in prison while serving time for a rape he didn't commit because a proposed constitutional amendment to give him that power did not pass the Legislature, Perry's office said.
Cole, who died in prison in 1999, was exonerated this year by a Travis County judge after DNA testing cleared him of the rape of a Texas Tech University student.
Cole's family is pushing for Perry to grant a pardon and still believes he could do it without the amendment. The Cole family met with Perry during the legislative session.
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"We're extremely disappointed in this," said Cole's brother Cory Session. "He said he would take care of it. If taking care of it is letting it wait for another two years, no. It's been 25 years. We're tired of waiting."
Session said the family plans to seek a presidential pardon from President Barack Obama.
The amendment was one of hundreds of bills and resolutions that died in the final days of the legislative session without a final vote. The session ended Monday and lawmakers won't return to Austin for another regular session until 2011.
If approved by lawmakers, the amendment would have gone before voters statewide Nov. 3. Cesinger said the governor is unable to grant the pardon without it.
Officials at the Texas Board of Pardons and Paroles said the governor is not empowered to grant a posthumous pardon.
Lawmakers passed other legislation in Cole's name. The Timothy Cole Act, which Perry signed into law, will boost compensation paid to those who are wrongly convicted and sent to prison.
Amarillo attorney Jeff Blackburn, who worked closely with the Cole family as chief counsel for the Innocence Project of Texas, said he hopes the governor can eventually grant the pardon.
"I believe we are going to find a way to grant clemency to Tim Cole," he said. "We're pretty optimistic."