Untitled Texas Attorney General Opinion ( 1971 )

RNEY GENERAL
XAS
Honorable 0. N. Ehnnphreys,
Jr. @iniOn NO. M-789
Administrator
Texas Alcoholic Beverage Re:, The effect of a Gover-
Commission nor's pardon granted to
Capitol Station a convicted felon who
Austin, Texas 7871.1 makes application for a
Wine and Beer Retailer's
Permit prior to the ex-
piration of three years
next succeeding.the
granting of 6uch Gover-
Dear Mr. Humphreys: nor's pardon.
Your request for an opinion presents the following question:
Whether or not an applicant who has previously
been convicted of a felony and sentenced to a term
of thirty years in the Texas Department of Correc-
tions and thereafter placed on parole, is aisquali-
fied from receiving a Wine and Beer Retailer's Per-
mit even though he was granted a full pardon on
May 26, 1970, by the Governor for his conviction
on September 28, 1955.
Article 667-5F, Vernon's Penal Code, provides in pertinent
part, as follows:
"(aJ the county judge shall refuse any original
applicat on for a Retail Dealer's On-Premise License
or a Wine and Beer Retailer's Permit if he finds that
the individualapplicant, or the spouse of such appli-
cant, has at any time during the three years next pre-
ceding the filing of such applicationbeen finally
convicted of a felony, or any of the following offenses:
11
. . . .
"(9) violation of penal law involving firearms
or other deadly weapons or if he finds that three
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Honorable 0. N. Humphreys, Jr., page 2 (M-789)
years has not elapsed since the terminationof
any sentence,parole or probation served by the
applicant, or the spouse of such applicant,as
the result of a felony prosecution,or prosecu-
tion for any type of offense named herein.
II
. . .II
The annotation in 31 ALR2d 1186 discusses the effect of
a pardon on a prior felony convictionwhere it is sought to use
such prior felony Conviction for the purpose of enhancing a sub-
sequent conviction. The annotation indicates that there is a
split of authority. 'The majority's view is that a pardon does
not serve to obliteratethe prior felony convictionwhere it is
sought to be used in enhancementproceedings,the minorityts
view'being,to the contrary. Until 1941 Texas had voted with the
minority, holding that the pardoning power of the Governor wiped
out the .existenceof a former conviction and left the record as
though ithad never been. In Jones v. State, 147 S.W.2d 508
(Tex.CriLApp.1941) the Texas Court of Criminal Appeals declined
to follow the former decisions,thus joining the ranks of the
majority. After tracing the history of what they consideredto
be an erroneous decision, the court explained its reasons for a
change of-course:
"Again this court has consistentlyheld that a
witness may be examined as to his previous conviction
for the purpose of enlighteningthe jury as to his
credibilityand this though the Governor had granted
him a full and unconditionalpardon. We find no condi-
tion under which our courts have ever held the Gover-
nor's pardon to effectivelywipe out the existence of
a fact, save and except in the applicationof the en-
hancement statute. Our holding herein will be consis-
tent with the holding on the ~samesubject in all other
cases.
"The Governor can forgive the penalty, but he has
no power to direct that the'courts shall forget either
the crime or the conviction. The psges'writtenby the
court's decree are in the minutes still." (at p* 511.)
To the same effect is a case in the Court of Wiminal Appeale
of Texas'the fbllowing year, Square v. State, 167 S.W.2d 192 (Tex.
Crim.App. 1942.) In overrulingthe motion for rehearing the court
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Honorable 0. N. Humphreys, Jr,, page 3 (M-789)
cited approvinglyJones v. State, 147 S.W.2d 508, saying:
this court declined to follow the
former'd&ions so that it may now be said that
the pardoning power of the executive has no effect
whatsoever on the judgment or any portion of the
~~&~;o~ior tf the date of the governor'spro-
. . . (at P. 194.)
In 30 AIB2d 893, the annotation concludes that a prior
felony convictionmay be used for impeachmenteven though such
convicted felon has been granted a pardon for such offense. To'
the'same effect is Bernard's, Inc. v. Austin, 300 S.W. 256 (Tex.
Civ.App. 1927, error ref.) I thi h the court
held that the impeaching evidkce ~fC~~~'wi~~~~~~'conviction,
fourteen years before the trial, was too remote.
In Handksmer v. Templin, 143 Tex. 572, 187 S.W.2d 549 (1945)
the Texas Supreme Court had before~,itthe case of a lawyer who
had been disbarred following a felony conviction. He had been
sentenced to the penitentiaryfor a term of years and thereafter
paroled. Later, he was granted by the Governor of the State a
full pardon. Denying the disbarred lawyer's application for a
Writ of Mandamus the court said:
"The full pardon removed from petitioner the
penalties and disabilitieswhich attached in virtue
of his conviction and restored to him his civil rights;
but, as pointed out Ex arte Stephenson, supra (243
Alabama 342, 10 so.2a 3P , 'the pardon and restoration
of his political and civil rights do not of themselves
restore the petitioner to the office of sn attorney.' '
(at P. 550-551)
To the same effect is the Californiacase, Feinstein v. State'Bar,
248 P.2d 3 (Cal.Sup.1952) there the court said th t a
does not reinvest the applicant with those essenti%sar~~i%
of an attorney.
From the foregoing therefore, it seems clear that a Governor's
pardon does not wipe the slate clean so as to completely oblit-
erate the conviction from the record. Consideringthen that the
legal burdens of the conviction continue to exist up to the time
of the issuance of the pardon by the Governor, the only effect
that can be ascribed to such pardon is the termination of those
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Honorable 0. N. Humphreys, Jr., page 4 (M-789)
burdens. Therefore, the pardon of the Governor has only the
effect of a ~"terminationof parole" within the language of
Article 667-5F, supra. Therefore, the applicant will be re-
quired to wait a period of three years subsequentto the
issuance of the pardon before he is eligible to make applica-
tion for a permit.
SUMMARY
The applicationfor a Wine and Beer Retailer's
Permit by a person who was convicted of a felony on
September 28, 1955, and sentencedto thirty years in
the Texas Department of Corrections,and who was
granted a full pardon by the Governor on May 26, 1970,
may be considered after May 26, 1973.
The pardon does not obliteratethe conviction
from the record for the purpose of administeringthe
Texas Liquor Control Act.
6 very truly,
Prepared by Max P. Flusche
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W.E. Allen, Co-Chairman
Ben Harrison
Dick Chote
Austin Bray
Bob Lattimore
MFADE F. GRIFFIN
Staff Legal Assistant
AI,FRNDWALKER
Executive Assistant
NOLA WHITE
Pirst Assistant
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