Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
hmber 12, 1980
MARK WHITE j
Attorney General
Honorable Robert C. Koehl Opinion No. MV-~270
Atascom County Attorney
Jourdanton, Texas 78026 Re: whether a uonvicted felon
wholxu3receivedafullpardonmay
serve as a pmue offiuer
Dear Mr. Koehl:
You have asked whether a convicted felt w.b has’been grented a full
and.mconditional pardon ty the governor of Texas is eligible to be certified
as a peace off&r by the Texas Commission on Law Enforcement Officer
Standards and JM~caticm. Article 44l2(29aa), V.T.C.S., ptuvides in section
8A(rd that %.I 0 person who has heen convicted of a felony under the laws of
this state, another state, or the United States may be certified ty the
Commission as qualified to be a peace officer.. . .” Therefore, the answer
to you~inquiry is dependent upon the legal effect of a full and tmconditional
pardon granted by the governor pursuant to Micle IV, section 11of the Texas
Constitution nnd article 48&l of the Texas Code of Criminal Procedure.
Thelegaleffectofapardoslhasbeen~bJrboththeS~~me
Court of Texas md the Texas Court of Criminal Appeals, with ea@~UXM
reach@ the mme amelusion. In deter- that a prior cdnlictian far
whfch the defendant. had received a full pnrdon amid be ued fa
athanuement of a ssMeqwnt offense, the .cavt of Crhniml Appeals
ncogn~edthepowarofthegovecnortogmntapardana
bu~kstheverye9senceofapardoni9fagiwmew~or
remissiun .of penalty, a p&don impli~ guilt) it doea
not ubliterfite the feet of the commi8sSab of the
crime end the convlcticn therefor$ it does mt wash
outthemoca1stnin. Ashnsbeant+%elyEeaM,“#
involves forgiveness end not forgetfulmss.“1
Jones v. State, l47 S.W. ‘2d 508, 510 flex. Grim. App. l94& uitillg 46 C.J.
tarduns S32, at ll9S; Untted Statea v. Swift, 188 P. UM2@.IlL l9lQ Sbenek
v. 272 S.W. 141 CT Cim A l&i1 “[Tlhe uonviution was not
obliterated by the pmdoi~%utr~;na~ a feet in the peat hbtory of the
defendant.” 147S.W. 2d at 510.
p. 857
Honorable Robert C. Koehl - Pege Two (M-270)
The case of Jones v. State, s, was cited with approval by the Supreme Courts
of Texas in Hankamer v. Temphn, 167 S.W.2d 549 (Tex. 1945), which determined that a
disbarred attorney who had received a full pardon and restoration of citizenship was
not entitled to reinstatement of his law license, which had been revoked because of his
conviction for a felony. The supreme court observed that “the right to practice law is
not a personal rigi& but a franchise, or privilege.” 187 S.W.2d at 551.
The Court of Criminal Appeals has likewise determindd that a full pardon did not
p=clude the admission of evidence of the pardoned offense to prove possession of
burglary took by a convicted felon. J&an v. State, 449 S-W. 2d 462 (Ten Crim. App.
1969l The court Fe-affirmed its decision in Jones v. State, s ra and quoted from an
opinion by Judge Gol&zrg in Gurleski v. United States, 405+%I 253 (5th Ckl968)
that “(al pardon for any other reason than s&sequent proof of innocence &es no;
obliterate the defendant’s previous transgressions.” 448 S.W.2d at 464.
te Smith 548 S.W.2d 410 Rex. Crim. App. l977), a,prior conviction for
whihd been pardoned, for reasons other thsn &sequent pmof of
innoc&ce, was held to be admissible to deny bail to sn habitual offender. Likewise, in
the absence of a showing that a psrdon had been granted for stisequent~proof of
innocence, evidence of the pardoned offense was held to be admissible to prove
pamession of e firearm by a convicted felon in Rune v. State, 556 S.W. 26 809 (Tex.
Crim. App. 1977). A similar decision was reached in Watkins v; State, 572 S.W.2d 339
(Tex. Grim. App. l978), wherein the court held that a pardon grahted for any reason
other thsn s&sequent pmof of hnmcence did not preclude use of the pardoned offense
in bsrrSng the defendant% right to receive a probated sentence in e S&sequent criminal
proCediIg.
The United States Court of Appeals for the Fifth Circuit has adopted the
rationale of Jones scpra, in hold& that e psrdon granted fm any reason other
then s&sequent, proof of innocence would not be effective to preclude use of the
pardoned offense for ‘enhancement of a s&sequent offense. ‘Donald v. Jones= 445 P.2d
601 (5th Cir.), cert. denied, 404 U.S. 992 (l97l). The Fifth Circuit has also held that
evidence of such a pardoned off- would be admissible for impeachment purposeset
the defendant% trial for a s&sequent offense. Gurleski v. United States, 405 P.2d 253
(5th Cir. l968), cert. denied 395 U.S. 961, cehearh denied s& nom. Smith v. United
~S66-U.S.869
‘III summery, the foregoiw de&ions establish that a prior conviction for which
the defendant hss received a full pardon, absent a showing that such pardon was
granted for s&sequent proof of innocence, may be utilized for purpcees ‘of (u
enhancement, (2) impeachment, (3) denial of bail to an habitual offender, (4) denial of
probation, (5) denial of a license to practice law, (6) provirg possession of a firearm by
a felon and (7) pmviw possession of burglary tools by a felon.
‘It is generally recognized that a pardon is effective to restore certain rights of
cItizenship, e. ., suffrage, jury service, and hold@ public office. See Easterwood v.
m, 31 a 6 294 (Tex. Crim. App. 1695); Election Code art. L05. This offica has
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Honorable Robert C. Koehl - Page Three (Mb’-270)
previously determined that there is no difference between the civil rights reinstated by
a “pardon 11and a “restoration of citizenship” under article 42.12, section 24 of the
Texas Code of Criminal Procedure. See Attorney General Opinion H-587 (1975).
Although section 24 of article 42.12 has been stisequently amended, and the reference
to “restoration of citizenship” has been deleted, we believe the legal effect of a pardon
to be synonymous with a restoration of rights of citizenship. Therefore, it must be
determined whether certification as a peace officer i# a personal right embodied in
“rights of citizenship” which are effectively restored to a convicted felon by the
granting of a full and unconditional pardon.
As the Supreme Court of Texas observed in Hankamer v. Templin, s_rpra, the
right to practice law is not a personal right; rather, it IS a franchise OF pnvilege
conferred b the state only for merit. The right to practice law in this state is
attested by a law license issued by the Supreme Court of Texas and is protected by
registration. An individual may not legally practice law without takiw the statutory
oath of office and becomirg an officer of the court, stiject to its disc’ line, liable for
contempt for violation of duty, and stiject to suspension or removal fpor misconduct.
187 S.W.2d at 55. It cannot be said that a license to practice law is a right of
citizenship open to all regardless of qualification; rather, a law license is in the nature
of e franchise cr privilege conferred by the state cftly for merit and slaject to
revocation or denial for just cause. We believe that certification as a peace officer is,
;;,“,“,” license, not a right but a franchise or privilege conferred by tha state only
We iwve recently determined that denial of certification. as a peace officer
because of a prior conviction resulting in e probated sentence did not constitute a
“penalty” or vdisability” from which the convicted felon could be released lpon
discharge from probation pursuant to article 42X, section 7 of the Texas Code of
Criminal Procedure. See Attorney General Opinion MW-146 (198OL We there observed
that the diiciplin~ o~censees is for the protection of the general public and not for
the purpose of punishitg any licensee. See e. Cope&id v. Department of Alcoholic
Bever e Ccdro 50 Cal Rptr. 452 (CaL+ t. App. 1966); see alao Meyer v. Board of
liGidb& xa ners, 206 P.2d 1085 (CaL 1949); In re Philliwx 2d 344 (CaL l94ti
Cooper 48xW. 2d 129 (Tex. Civ. App. - El Pa.&
1972, writ rePd n.r.e.1.
Accordi@y, we do not construe certification as a peace off&r to be a right of
.
citizenship subject to restoration after conviction by a pardon. It is therefore our
opinion that e full and unconditional pardon, unless granted for stiaaquent proof of
innocence, would not entitle a convicted felon to be certified as a peace officer, in
view of the prohibition of section 8Afa) of article 4413(29aaL
SUMMARY
.A pardon granted for any reason other than s&sequent proof
of innocence would not entitle a convicted felon to be certified
as a peace officer.
p. 859
Honorable Robert C. Kohl - Page Four w-270)
Attorney General of Texas
JOHN W.FAINTER,JR. .c
First Assistant Attorney General
RICHARDR GRAY III
Executive Assistant Attorney General
APPROVED:
OPINlONCOMMIX’TRE
Susan L. Garrison, Actillg Chairmen
Jon Bible
GereId C. Cerruth
Rick Gilpin
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