Untitled Texas Attorney General Opinion ( 1998 )

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DAN MORALES
ATTORNEY
OENERAI. November 10, 1998
The Honorable Al Edwards Opinion No. DM-486
Chair, Committee on Rules and Resolutions
Texas House of Representatives Re: Whether an individual convicted of a prior
P.O. Box 2910 federal offense may apply for restoration of civil
Austin, Texas 78768-2910 rights forfeited in the state as a result of the
federal conviction if the individual has also been
convicted ofamisdemeanor offense (RQ- 1072)
Dear Representative Edwards:
You request an opinion from this office about restoration of civil rights for an individual
convicted of a federal offense. Specifically, you ask whether such an individual may apply for
restoration of civil rights forfeited in the state as a result of the federal conviction if the individual
has also been convicted of a misdemeanor.’ We conclude in the negative for the following reasons.
We start with some background. Texas Constitution article XVI, section 2 directs the
legislature to enact laws “to exclude from office, serving on juries, and from the right of suffrage,
those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high
crimes.“z Pursuant to this constitutional authority, the legislature has enacted laws disqualifying an
individual convicted of a felony from holding a public office, serving on juries, and voting in
elections, among others things.j
Article 48.05(a) of the Code of Criminal Procedure, enacted in 1993: provides that an
individual convicted of a federal offense other than an offense involving violence, threat ofviolence,
or drugs may, except as provided by subsection (b), apply for restoration of any civil rights forfeited
‘You do not specify the misdemeanor offense.
2For the purposes of the constitutional provision, “high crimes” has been interpreted to refer to felonies. Welch
Y. State ex rel. Long, 880 S.W.2d 79, 82 (Tex. App.--Tyler 1994, writ denied); Hayes v. Harris County Democratic
Executive Comm., 563 S.W.Zd 884,885 (Tex. Civ. App.--Houston [14th Dist.] 1978, no writ). You do not ask and we
do not consider whether article 48.05(b)(3) 1s consistent with Texas Constitution article XVI, 5 2.
‘See Elm. Code $9 11.602 (disqualification as voter), 141.001(4) (disqualification from public office); Gov’t
Code 9 62.102(4), (7) (disqualitication fromjury); Prob. Code $ 78(c) (disqualification from serving as fiduciary).
‘See Act of May 19, 1993,73d Leg., KS., ch. 900,§ 7.01, 1993 Tex. Gen. Laws 3586.3762.
The Honorable Al Edwards - Page 2 (DM-486)
in the state as a result of the federal conviction (“prior federal offense”).5 Subsection (b) provides
as follows:
(b) An individual may not apply for restoration of civil rights under this
article unless:
(1) the individual has completed the sentence for the federal offense;
(2) the conviction occurred three or more years before the date of
application; and
(3) the individual has not been convicted at any other time of an
offense under the laws of this state, another state, or the United States.
[Emphasis added.]
Your question requires us to determine whether the term “offense” as used in article 48.05(b)(3)
includes misdemeanors.
Article 48.05 does not define the term “offense” for the purposes of subsection (b)(3).
Additionally, no Texas case or an attorney general opinion has construed the term in this context.
The following principles of statutory interpretation, however, guide us in construing this term.
Code of Criminal Procedure article 3.01 directs that “all words, phrases, terms used in this
Code are to be taken and understood in their usual acceptation in common language, except where
specially defined.“(’ As explained by the Texas Court of Criminal Appeals, “when read in context,
such words should be open to the broadest possible understanding to which they are reasonably
susceptible in the English language.“’ A different and narrower interpretation may not be imposed
under the guise of statutory construction.8 Application ofthese principles leads us to conclude that
“offense” as used in article 48.05(b)(3) includes misdemeanors.
“Offense” as commonly
and broadly understood includes both felonies and misdemeanors.
Webster’s Ninth New Collegiate Dictionary defines, “offense” as “an infraction of law; esp.:
‘Restoration of civil rights under this article is a form of pardon that restores all civil rights forfeited under state
law as a result of the prior federal offense, except as otherwise provided in the certificate of restoration. Code Grim.
Proc. art. 48.05(k)
%SeealsoPenal Code $ 1.05(b); Gov’t Code 9 3 11 ,011
‘Bingham Y. Sfafe, 915 S.W.2d 9, 10 (Tex. Grim. App. 1994)
8Id.
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The Honorable Al Edwards - Page 3 (DM-486)
MISDEMEANOR .‘* Black’s Law Dictionary defines the term as “[a] felony or misdemeanor; a
breach of the criminal laws.“‘o Additionally, while neither the Penal Code or the Code of Criminal
Procedure specifically define “offense,” the definitions ofmisdemeanors and felonies make it clear
that both are encompassed by the term offense.” Article 12.02 ofthe Penal Code classifies offenses
as felonies or misdemeanors. Felonies are “offense[s] so designated by law or punishable by death
or confinement in a penitentiary.“12 Misdemeanors are “offense[s] so designated by law or
punishable by tine, by confinement in jail, or by both fine and confinement in jail.” Finally, nothing
in the legislative language of article 48.05 restricts the term “offense” as used in subsection (b)(3)
to refer only to felonies and exclude misdemeanors. If the legislature had intended to limit
subsection (b)(3) to include only felonies and exclude misdemeanors, it would have expressly so
provided as it has done in other instances. l4 Therefore ., we conclude that the term “offense” as used
in article 48.05(a)(3) by definition includes misdemeanors.
While article 48.05 by its term does not exclude any misdemeanors from “offenses” for the
purposes ofsubsection (b)(3), arguably class C misdemeanors arenonetheless excluded from article
48.05(b)(3) because ofPenal Code section 12.03(c). Section 12.03(a) ofthe Penal Code classifies
misdemeanors according to the seriousness of the offense into three categories: class A
misdemeanors, class B misdemeanors, and class C misdemeanors. Class A and B misdemeanors are
punishable by fine, confinement in jail, or by both.” Class C misdemeanors are punishable only by
WEBSTER’S NINTH NEW COLLEGIATE DKUONARY 819 (1990).
“BLACK’S LAW DICTIONARY 915 (5th ed. 1979); see also Yates Y. State, 679 S.W.2d 538, 540 (Tex. App.--
Tyler 1984, writ ref d) (“offense” in statute allowing denial ofbail in appeal from felony conviction and commitment
to custody if there is good cause to believe defendant is likely to commit “another offense” includes felony or
misdemeanor); 29 WORDS & PHRASES 373 (1972) ( o th er cases cited under OFFENSE, Felonies and misdemeanors).
“See Penal Code $5 1.07(23) (defining “felony” as offense so designated by law OI punishable by death OI
confmement in penitentiary), (3 1) (defining misdemeanor as offense so designated by law or punishable by fme, by
confinement in jail, OTby both), 12.02 (designating offenses as felonies OI misdemeanors).
‘2Penal Code 5 1.07(23).
“Id. 5 1.07(3 1)
‘Tompare Code Grim. Proc. art. 48.05(b)(3) wifh id. art. 55.01(a)(C) (person arrested for felony OI
misdemeanor entitled to have arrest records and files expunged if acquitted or convicted and pardoned and if “he has
not been convicted of afelony in the five years preceding the date of arrest[,]” among other things) (emphasis added).
The legislature enacted articles 48.05 and amended 55.01 in the same legislative session as part of the 1993 Penal Code
amendments. SeeAct ofMay29, 1993,73dLeg., RX, ch. 900, $9 7.01,7.02, 1993 Tex. Gen. Laws3586,3762-63.
‘SPenal Code 55 12.21 (class A misdemeanor punishable by fme not to exceed $4,000, jail confmement not
to exceed one year, OI both), .22 (class B misdemeanor punishable by fme not to exceed $2,000, jail confmement not
to exceed 180 days, OTboth).
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The Honorable Al Edwards - Page 4 (DM-486)
a tine not to exceed $500.16 Section 12.03(c) provides that “[clonviction of a Class C misdemeanor
does not impose any legal disability or disadvantage.” In Attorney General Opinion N-1237, this
office noted that section 12.03(c) is a long-standing feature ofthe state’s penal laws and is designed
to ensure that “‘conviction of a Class C (justice court) misdemeanor does not deprive the defendant
of his rights to vote, hold public office, serve on a jury, or other rights of citizenship.““7 Thus, if
offense in article 48.05(b)(3) IS read to include class C misdemeanors, arguably an otherwise
qualified applicant becomes ineligible for restoration of civil rights solely because of the class C
misdemeanor conviction and is accordingly “deprived” of his civil rights contrary to Penal Code
section 12.03(c).
Although the above argument may have some merit, we remain unpersuaded that the
legislature intended to exclude class C misdemeanors from article 48.05(b)(3) for the following
reasons. First, the legislatively adopted language does not exclude these misdemeanors.‘* Penal
Code section 12.03(c) is a long-standing feature of the state’s penal laws. It has been in existence
since at least 1973.19 Presumably, the Texas Legislature was aware ofthat statute’s existence when
it adopted article 48.05 in 1993.” If the legislature intended that article 48.05(b)(3) not include class
C misdemeanors, we believe it would have so expressly provided?’ It did not. Second, it is not the
conviction of the class C misdemeanor that deprives an applicant under section 48.05 of his or her
civil rights. Rather, it is the prior federal offense that deprived the individual of these rights. The
requirement that the applicant not have been convicted of any other offense, including a class C
misdemeanor under Texas law, is merely an additional condition imposed by the state for restoration
of the rights forfeited under state law as a result of the prior federal offense. We are unaware of any
authority that requires the state to restore the forfeited civil rights or that would prevent the state
from imposing such conditions as it deems appropriate when the state chooses to restore these rights.
Before 1993, there were no state procedures for restoring civil rights for federal felons.22
lbId. $ 12.23.
“Attorney General OpinionJiv-1237 (1990) at 3 ( concluding, however, that even assuming employment bar
as to class C misdemeanors at elderly and disabled facility pursuant to ch. 106 of Hum. Res. Code is “legal disability
or disadvantage,” more specific and recently enacted ch. 106 would control over Penal Code 5 12.04).
‘*Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (when interpreting statutes, court seeks to
effectuate collective legislative intent or purpose; primary indicator of intent is statute’s literal language because it best
indicates legislature’s collective intent at time legislature adopted statute).
‘?See Act of May 24, 1973,73d Leg., R.S., ch. 399, 5 1, 1973 Tex. Gen. Laws 883,906.
‘%ee 67 TEX. JUR. 3~ Siafures $ 134 (1989) (may be presumed that legislature aware of existing statutes).
“See Boykin, 818 S.W.2d at 785; State Y. Kaiser, 822 S.W.Zd 697, 700 (Tex. App.-Fort Worth 1991, pet.
ref d) (existence OI nonexistence of particular intent of statute may be inferred from fact that statute does not contain
certain provision).
22See Act of May 27, 1993,73d Leg., R.S., ch. 900, 5 7.01, 1993 Tex. Gen. Laws 3586,3762; Beecham Y.
(continued...)
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The Honorable Al Edwards - Page 5 (~~-486)
SUMMARY
An individual convicted of a prior federal offense may not apply for
restoration of civil rights forfeited in the state as a result of the federal
conviction if the individual has also been convicted of a misdemeanor
offense.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH .I. SHIRLEY
Chair, Opinion Committee
Prepared by Sheela Rai
Assistant Attorney General
UnitedStates, 5 11 U.S. 368,372 (1994) (many jurisdictions, including Texas, have no procedures for restoring forfeited
civil rights to federal felons); Unifed States v. Thomas, 991 F.2d 206,213-14 (5th Cti. 1993) (Texas neither actively
nor passively restores all or essentially all of forfeited civil rights to federal felons).
p. 2760