Untitled Texas Attorney General Opinion ( 1943 )

Board of Pardons and Paroles
Austin, Texas
Attention: Mr. Abner L. Lewis
Dear Sir: Opinion No. o-5662
Re: Constitution, Article IV, Section
11, vesting in Governor power to
commute punishment and grant pardons
after conviction, on the written
8 igned recommendat ion of the Board
of Pardons and Paroles; the Governor,
on the recommendation of the Board
has the power to grant pardon
while the convicted's sentence is
suspended; "conviction" as used
means plea or verdict of gulltg.
Your request for an opinion on the above captioned
subject has been received and carefully considered. We quote
from your letter, dated October 6, 1943, to-wit:
,,
. . . .
"(1) The recent amendment to the Constitu-
tion of Texas prescribes that pardons and reprieves
may be granted 'after conviction.' Now, is the
judgment of conviction sufficient for the Board of
Pardons and Paroles to take juriscllctlonof the case
even though it is suspended in accordance with the
statute?
"(2) IS it permissible, under said constltu-
tional amendment, for the Board of Pardons ana
Paroles to recommend this form of clemency even
though the sentence has been suspended. . . 0 .?
“(3) Our Appellate Courts have held that one
whose conviction,has been had and sentence suspend-
ed, IS not precluded by reason thereof, from testi-
fying in the courts of record in this state. There
fore, does the suspension of said sentence of con-
viction forfeit the right of citizenship for any
other purpose............?
Board of Pardons and Paroles, page 2 0 -5662
I! 11
D . . . .
Section 11, Article IV, State Constitution, in part,
reads as follows:
11. , . . In all criminal cases, except treason
and impeachment, the Governor shall have power,
after convlctlon, on the written signed recommend-
ation and advice of the Board of Pardons and Par-
oles, or a majority thereof, to grant reprieves
and commutations of punishment and pardons; . . ."
(Underscoring ours)
The main question to be determined is: Does a judgment
of conviction, accompanied by a suspension of the sentence,
come within the term "after conviction" as used in the Consti-
tution?
It seems well settled that a judgment accompanied by
a suspension of the sentence 1s a conviction. In Calloway v.
State, 240 S.W. 554 and Hill v. State, 243 S.X. 982, our-.Court
of Criminal Appeals held, "that a judgment of guilty in a
felony case accompanied by a suspension of the sentence is a
conviction of felony as that term is used in sections 1, 2, 3,
and 5 of Chapter 7, Acts Regular Session of Thirty-Third Leg-
islature." Said sections are now embraced in Articles 776,
777, and 778, Vernon's C.C.P.
In Snodgrass v. State, 150 S.U. 162, the word "con-
viction," as used in Section 11 of Article IV of our Consti-
tution, was construed to mean simply the determination of
guilt by the jury, and does not embrace the sentence. In Goss
v. State, 298 S.W. 585, Judge Marrow, speaking for the Court
of Criminal Appeals of Texas, said: "While in some sense the
term 'conviction' applies to a final judgment of guilty, that
term as used in our Constitution, means a verdict of guilty.'
The same holding is found in Duke v. State, 291 S.W. 539."
In 'Words and Phrases, Permanent Edition, "Volume 9,
many cases are cited, practically from all our jurisdictions,
most of which hold that the word "conviction" in its popular
sense, means no more than a verdict of guilty and in some of
the cases, it is held that a plea of guilty, followed by a
suspension of sentence, amounts to a conviction.
We think the meaning of "conviction," as used in Sec-
tion 11, Article IV of the State Constitution, is well defined
in Section 21, page 539, 20 R.C.L., by the following language:
"The ordinary legal meaning of 'conviction,'
. .
Board of Pardons and Paroles, page 3 0 -5662
when used to designate a particular stage of a crim-
inal prosecution triable by a jury, is the confes-
sion of the accused in open court, or a verdict re-
turned against him by a jury, which ascertains and
publishes the fact of his guilt; while 'judgment'
or 'sentence' is the appropriate word to denote the
action of the court before which the trial is had,
declaring the consequences to the convict of the fact
thus ascertained. A conviction then within the mean-,
ing of these constitutional provisions is a stage of
the proceedings which precedes the judgment or sen-
tence of the court, which later serves merely as a
basis of an appeal or execution, and not to enlarge
the verdict or aid in the determination of the guilt
of the accused. That being so, sentence by the court
is not essential to the completion of a 'conviction;
and is not a necessary precedent to the exercise of the
pardoning power. . . . .'I
In the Anderson case reported in 92 Pacific Reporter
(2d) 1020, there is a lengthy discussion of the term “convic-
t ion” in such constitutional provislon as involved in the in-
stant case. Article VII of California's Constitution provides
that, "The Governor shall have the power to grant reprieves,
pardons, and commutations of sentence, after convictions, ...n
The California Court in construing the term, "After conviction,"
as used in the Constitution of that state had the following to
say, to-wit:
,f
. . . . .
"In the instant case, the problem presented
ISwhether an unconditional pardon granted after
a verdict of guilty, but before sentence and judg-
ment, is a pardon granted 'after conviction' wlth-
in the meaning of the above-quoted provision. This
precise queatiem has nwer been passed upon by the
appellate courts of this state. It has, however,
received consideration by the courts of other states.
Most state constitutions, in an attempt to prohibit
the abuses exlstent at common law under which the
crown exercised the power of pardon at any time,
contain a provision similar to the one above quoted
limiting the pardoning power to situations where
there has been a 'conviction.1 In interpreting
these provisions the majority of the states have
held that the word 'conviction' so used must be
given its ordinary legal meaning, namely, that the
term refers to the verdict of guilty or confession
of the defendant in open court and does not refer
to the sentence or judgment. . . .
Board of Pardons and Paroles, page 4 0 -5662
” . . . A minority of the states hold that the
term lconviction' in such constitutional provisions
should not be given its popular meaning, but should,
be interpreted In a strict technical legal sense.
So interpreted these courts have held that the term
denotes the final judgment of the court and that
a verdict of guilty without the imposition of sen-
tence is not, therefore, a conviction. Ex parte
Campion, 79 Eeb. 364 112 N.W. 585,’ Ex parte
White, 28 okl. Cr. do, 230 P. 522; .....*
"The reasoning of the cases stating the major-
ity rule seems to us to be sound. There would seem
to be no reason why the word 'conviction' in arti-
cle VII, supra, should not be accorded its normal
popular meaning. The rule is well settled, of course,
that in interpreting words found in a statute or
constituion, such words as have both a popular and
a technical meaning should be accorded their popu-
lar meeting, unless the nature of the subject in-
dicates, or the context suggests, that the are
used in a technlcal sense. 23 Cal. Jur. 7% 9, 1 124.
"Although, already stated, the courts of this
state have never passed on the meaning of the term
'conviction' as used in article VII, supra, they
have in several cases, interpreted the term as
used In several statutes. In all but one ease,
hereafter mentioned, it has been held that the term
tconviction' should be interpreted as meaning the
verdict of guilty, and that sentence and judgment
are not necessary to constitute a conviction.......
II
. . . . .
"For the foregoing reasons we conclude that
under the provisions of article VII of the Consti-
tution the governor may, and in this case properly
did, pardon after verdict of guilty and before sen-
tence and judgment."
In view of the decisions of our own state and of the
majority of other states, holding that the word 'conviction"
so used must be given its ordinary legal meaning, namely, that
the term refers to the verdict of guilty or confession of the
defendant in open court and does not refer to the sentence or
judgment, we are constrained to hold that the Board of Pardons
and Paroles has jurisdiction to recommend a pardon after con-
. .
Board of Pardons and Paroles, page 5 0 -5662
viction accompanied by a suspension of the sentence. We there
fore answer your first and second questions in the affirmative.
In answer to your third question you are advised that
a judgment of conviction accompanied by a suspension of the
sentence forfeits the right to serve on a jury. This conclu-
sion is supported by the case of Terrill v. State, 112 (26)
S.W. 734.
Yours very truly
ATTORNXY GENERAL OF TEXAS
By s/Jesse Owens
Jesse Ow&m
Assistant
JO:db:wc
APPROVED OCT 29, 1943
s/R.W. Fairchild
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee by s/BWB Chairman