Untitled Texas Attorney General Opinion ( 2014 )

GREG
0
ATTORNEY GENERAL OF TEXAS
ABBOTT
November 12, 2014
The Honorable Timothy J. Mason Opinion No. GA-l 087
Andrews County Attorney
121 Northwest Avenue A Re: Whether a person who was convicted of a
Andrews, Texas 79714 misdemeanor involving moral turpitude but
who received "judicial clemency" is eligible to
act as a bail bond surety (RQ-1200-GA)
Dear Mr. Mason:
You ask whether a person who was convicted of a misdemeanor involving moral
turpitude but who received "judicial clemency" under article 42.12, section 20(a) of the Code of
Criminal Procedure is eligible to act as a bail bond surety. 1 The Code of Criminal Procedure
prohibits a person from acting "as a surety on a bail bond if the person has been finally convicted
of ... a misdemeanor involving moral turpitude." TEX. CODE CRIM. PROC. ANN. art. 17.10(c)(l)
(West Supp. 2014). 2 You ask whether a grant of "judicial clemency" for such a misdemeanor
conviction restores the person's eligibility to act as a surety. Request Letter at 1.
Article 42.12, section 20(a) of the Code of Criminal Procedure governs the reduction or
termination of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a)
(West 2013); see also Rodriguez v. State, 939 S.W.2d 211, 220 (Tex. App.-Austin 1997, no
pet.) (observing that the terms "community supervision" and "probation" "generally mean the
same thing and are used interchangeably"). As pertinent here, section 20(a) states:
1
See Letter from Honorable Timothy J. Mason, Andrews Cnty. Att'y, to Office of the Att'y Gen. (May 12,
2014), http://www.texasattomeygeneral.gov/opin ("Request Letter").
2
Chapter 1704 of the Occupations Code, applicab le in certain counties, contains a similar disqualification.
See TEX. Occ. CODE ANN.§§ 1704.002 (West 2012) (applicability of the chapter), .153 (stating that a "person is not
eligible for a license under this chapter if, after August 27, 1973, the person commits and is tlnally convicted of a
mi demeanor involving moral turpitude or a felony"). You state that Andrews County is not subject to chapter 1704
of the Occupations Code. Request Letter at I. You further state that you believe that article 17.10 of the Code of
Criminal Procedure disqualifies a particular surety because of a '3 0+ year old theft conviction" unless judicial
clemency has restored eligibility. !d. Article 17.10(c)(l ) was enacted in 2011 and applies only to offenses
committed after the September I, 2011 effective date. See Act of May 25 20 II, 82nd Leg., R.S., ch. 769, §§ 2, 4, 5,
20 II Tex. Gen. Laws 1795, 1795.
The Honorable Timothy J. Mason - Page 2 (GA-1087)
Upon the satisfactory fulfillment of the conditions of community
supervision, and the expiration of the period of community
supervision the judge . . . shall discharge the defendant. If the
judge dischru:ges the defendant under this section, the judge may
set aside the verdict or permjt the defendant to withdraw the
defendant's plea, and shall dismiss the accusation, complaint,
information or indictment against the defendant, who shall
thereafter be released from all penalties and disabilities resulting
from the offense or crime of which the defendant has been
convicted or to which the defendant has pleaded guilty, except [for
certain crimes and circumstances].
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a) (West Supp. 2014).
The Court of Criminal Appeals has interpreted this provision to provide for two different
types of discharge from community supervision. Cuellar v. State, 70 S.W.3d 815, 818 (Tex.
Crim. App. 2002). The most common type of discharge under section 20 "graduates" the
defendant from community supervision but does not alter the usual legal significance of the
defendant's conviction. Id.
The Court of Criminal Appeals describes the second type of discharge under section 20
as a form of "judicial clemency," a matter within the trial court's sole discretion. Id. at 819.
According to the Court, "[i]f a judge chooses to exercise this judicial clemency provision, the
conviction is wiped away, the indictment dismissed, and the person is free to walk away from the
courtroom 'released from all penalties and disabilities' resulting from the conviction." Id.
(citation omitted). Because an attorney general opinion advises about "the current status of the
law," when the Court of Criminal Appeals has definitively construed a provision of the Code of
Criminal Procedure, we are bound by that interpretation. See Tex. Att'y Gen. Op. No. GA-0630
(2008) at 4 (stating the function of attorney general opinions); Southwick v. State, 701 S.W.2d
927, 929 (Tex. App.-Houston [1st Dist.] 1985, no pet.) ("The Court of Criminal Appeals is the
highest tribunal on matters pertaining to the enforcement of criminal laws, and when it has
deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its
interpretation.").
Thus, based on Cuellar, if a judge grants judicial clemency under section 20, the
conviction "disappears" unless an exception applies. Cuellar, 70 S.W.3d at 820. Section 20
contains exceptions for subsequent convictions, convictions for specified categories of crime,
and convictions of applicants or licensees concerning child-care facilities. See TEX. CoDE CRIM.
PROC. ANN. art. 42.12 § 20(a)(l) (b) (West Supp. 2014). Provisions outside of section 20 may
dete1min whether judicial clemency will release a person from particular penal ties or disabilities
that result from conviction of a crime. See Tune v. Tex. Dep 't of Pub. Safety, 23 S. W .3d 358,
360 (Tex. 2000) (determining that the Concealed Handgun Act's specific definition of the word
"convicted" means that a person who has been convicted of certain crimes is disqualified from
licensure even if the person has received judicial clemency); see also TEX. Occ. CoDE ANN.
§ 1701.312(b)(2) (West 2012) (providing that a person convicted of a felony is disqualified from
certain law enforcement licenses "regardless of whether . . . the accusation, complaint,
The Honorable Timothy J. Mason - Page 3 (GA-1087)
information, or indictment against the person is dismissed and the person is released from all
penalties and disabilities resulting from the offense"). No statute prohibits a person from acting
as a bail bond surety because of a criminal conviction when the person has received judicial
clemency for the conviction.
"When specific exclusions or exceptions to a statute are stated by the Legislature, the
intent is usually clear that no others shall apply." Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d
303, 307 (Tex. 1978). A court would likely determine that the statutory disqualification of
persons convicted of a crime from acting as a bail bond surety is a penalty or disability resulting
from the conviction as contemplated by article 42.12 section 20 of the Code of Criminal
Procedure. Based on Cuellar, a court would likely conclude that a per on who was convicted of
a misdemeanor involving moral turpitude but who received judicial clemency under article
42.12, section 20(a) of the Code of Criminal Procedure, if otherwise qualified, is eligible to act
as a bail bond surety. 3
3
But see Cuellar, 70 S.W.3d at 834 (Keasler, J. dissenting) (stating that a person convicted of a
misdemeanor of moral turpitude or a felony is barred for life from being a bail bond surety).
The Honorable Timothy J. Mason - Page 4 (GA-1087)
SUMMARY
A court would likely conclude that a person who was
convicted of a misdemeanor involving moral turpitude but who
received judicial clemency under article 42.12, section 20(a) of the
Code of Criminal Procedure, if otherwise qualified, is eligible to
act as a bail bond surety.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee