Untitled Texas Attorney General Opinion ( 1971 )

ATIY)RNEY GENERAL
OF%'EXAS
February 19, 1971
Hon. Joe Remmber Opinion No. M-795 t
County Attorney
Hard6 county Ror Whether l poreon who
HOU6tOn, T6X&6 ha6 been convicted ot
a felony but whoae
aentenoa has been pro-
bated.may k.$laued a
votq,regis,ft;Stion
Dear Mr. Re6WehMl certitioak. ._.
.
In your recent 0 &ion requert ddresred&:;)lii
office you ark the~to P lowing questions
Whether a person who hu ben convicte4 of’
a felony but.which aentenoe.has been~ robah& auy
be issued a voter regi8t~@tio&aertif P c&e.-,
Article VI, Section 1, Conrtikon of Texa$, pioVi*des
in part as follows:
"The following claeses of person8 Shall
not be allowed to vote in this state, to wit:
l
. . .
"Fourth: All person8 convictei3 ot any telony,
abject to auah en#ptione ar the Legirl8ture may
make.” .
This constitutional provision wu implemented by. the
tigfalature in Article 5.01 of the tkction Code of the
State of Texas, which provide8 in pertinent partr
“The following classes of persona shall
not be allowed to vote in this .&ate8
" . . .
- 5861.
Hon. Joe Re6weber, page 2 (M-795)
“4. All persons convicted of any felony
except those restored to full citizenship
and right of suffrage or pardoned.”
Article 42.12 of the Code of Criminal Procedure of
Texas deals with probation in felony ca6e6 and provides~
authority for the 6USPending of sentence6 and the plaoing
an probakon of defendants convicted of felonie~s uhdek Ce*ilih
prescribed circumstances. Section 7 of Article II.12
orovides:
“Sec. 1. ht any time, after the defendant
has sati6factorily oompleted one third of the
original probationary period or two years of
probation;whiohever is the lesser, the period. l* I
of probation may be reduced or terminated b the
court. Upon the saCirtac$ory tultillment‘o Lb@
conditions of probafion, and the expiration or
‘~
the period or probation, the court, by order
duly entered, sball'akumd or modity the origiirkl
sentence imbpos8d, IS,’necessary, to conform to :
the probation p&rid and shall discharg6 the.‘
defendant. In case the defendant has been
convicted or 68 entered a’plea of guilky or
a plea of nolo contendere, and the court has
discharged the defendant hereunder, euch court
may set aside Me verdiot or permit the defetidant
to withdraw his lea, and shall ‘dismiss +he '
accusation, campP aint, information or indictment
agarn6t such defendant, who shall there-after
he
-- released from all penalltie6 and di6abflitieS
resulting from the gEos: or crime of which he
KXFEiFen convioted aicn ns-nas pxeaaeo-
guilty,.except that proof of his maid conviction
Crta of guilty shall be made known to the
court 6hould the detendant again br convicted
of any criminal offenee."
It seems clear that the court rn which the conviction
was had mu6t affirmatively take thelaction contemplated
by Section 7 before a defendant ie . . . released from
all disabilitiee reeulting from the offense . . . of which
he ha6 been convicted.. . .* (Empha6i6 ours) This includes
the release L n the disability of not being permitted
to vote. See Attorney General 6 Opinion No6. M-640 (1970)
and V-278 (1947).
Hon. Joe Resweber, Page 3 (M-795)
Accordingly, until the trial court sets aside the
verdict or permits the withdrawal at the plea of guilty
and dismisses the *acousation, complaint, information or
indictment", tbs detendant cumot vote in Texas and a
votes registration oertitioate should not be issued to
him.
It is generally held in other states that a oon-
viction of a felony is 6uch a "disabilityg as.would bring
about a di6qualitication to vote. 149 A.L.R. 1075, and
cited authorities.
SUMMARY
A voter regi6tration certificate should not
be issued to one convicted of a felony and placed
on probation until the court in which the con-
viction was had has set aside the complaint,
information or indictment as authorized by 57 ot’
Article 42.12, Codc.6t Criminal Procedure of Texas.
I’’I
/I
Prepared by Lonny F. Zwiener
c
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Ta lor, Chairman
W. t. Al!en, Co-Chairman
Roger Tyler
Pat Bailey
Bob Lattimore
James Quick
MRADE F. GRIFFIN
Statf Legal AsSiStcUlt
ALFRED WALKER
Executive A66i6tant
NOIA WHITE
Fir6t Aeairtant
-3863-