Untitled Texas Attorney General Opinion ( 1940 )

i .
%ZEl Y GJCNERAE
Texas Prison Board
711 West Alabama Street
Houston, Texas
3ear Sirs: Attention: M??s * C. A. 'Teagle,Secretary
Opinion No, O-2359
-
Re: Are inmates of the Texas Drison Sgs-
tern,after their release and the
restoration of their citizenship
eligible to take the examrnation
for and become cosmetologists?
This will acknowledge receipt of your recent 1~etter
in which you submit the question as stated above.
Our statutes relating to the practice or occupaticn
of cosmetology ha7e been Incorporated in Vernon's Anno,iated
Crimina?~Statutes as ArtLcle 734b, That Article provfdes that
no person may lawfully engage in the practice or pursue the
occupation of a hairdresser oracosmetologist unless such per-
son sbal.1have firsi;cb,taineda certificate or registratiorl
or license from the State Board of Rairdressers and Cosmetol,o-
gists.
Section 19 of said Artic1.e?34b relates to t-hesubject
we are here called upon to interpret. We quote:
I'Sectlon15. The said Board created 'bythis Aet
shall have the power to revoke or suspend certificates
provided in this A&, when the registrant or licensee
shall have been convfcted of having violated any of
the provIsions of this law or shall have been conv:eted
of a felony or shall have been convIcted of drunken-
ness or of any offense in either the State or Federal
Court involving the illegal use, sale or transporta-
tion of intoxicating liquor or narcotic drugs, and
any person so charged shall have the right of trial
by jury in the county or district where such offense
fs alleged to have been eommftted before the revoea-
tion or cancellation of such license shall become ef-
fective.
"(a) The Board may refuse to grant a certi-
Texas Prison Board, page 2 Q-2359
ficate to any person who shall fail to make a
grade of seventy-five (75) in all subjects upon
which they are examined, or to any person guilty
of fraud in passing the examination and obtain-
ing a certlflcate of authority to operate under
the provisions of this Act at any time, or if
such person shall be found guilty of a felony, or
gross Immorality or unprofessional or dishonest conduct,
or should such person become addicted to the use'
of drugs, or the habitual use of intoxicating liquor
to such an extent as to rend,erhim or her unfit
to practice in any G:? the occupations classified
under this Act, and the Board shall further have
authority to refuse to issue a permit or to cancel
a permit issued to any one advertising by means
of knowingly false and deceptive statements and for
their failure to dlsplag the certfflcates as pro-
vided for in this Act." (UNderscoring ours)
Under the provjaions of the foregoing statute, you are
respectfully advised that one who has been convicted of a fel-
ony may not legally qualFfg for a certlffcate or license as a
hairdresser or cosmetologist, unless favored wi,tha full and
complete pardon and restoration of citizenship.
As to the effect of such pardon as applied to the aitu-
ation of which you 'Lnqulre,we quote the following excerpt from
Texas Jurisprudence:
"A full or unconditional pardon operates to
prevent all further punishment for the offense for
which it is given, to remove all penal consequences,
and'diaabilities incident to the conviction, and to
create in the pardoned offender a new credit and
capacity wholly unaffected by hIa crime. ‘It; ‘re-
leases the punishment and blots out the guilt so
that, in the eye cf the law, the offender Ls as
innocent as if he had never committed the @ffense.'
It makes him, as has been said, a new man. D . O
"As a general rule a full pardon restores one
who has been convicted of a felony to all of his
civil rights, including those of suffrage and jury
service. It also removes the felon's disqualifica-
tion to testify in any other proceeding and makes
him a competent witness. To have thie effect it is
essential that the pardon be a full and uncondition-
al one. . . .' (31 Tex. Jur. Pardon, s 9, p. 1265,
et seq.)
L ”
Texas Prison Board, page 3 O-2359
In Easterwood v. State, 34 Tex. Cr. R. 400, 31 S.W.
294, it Is said:
"Disabilities arising out of and attaching to
a conviction for felony In this state are removed by
the absolute pardon. The provisions in the Constf-
tution and the laws of this state, 1mposir-gdlsabtli-
ties because of conviction, are not and cannot be
l~imltationsupon the authority of the Governor to
pardon. It la beyond the‘power of the Legislature
to so restrict the conseauences of the oardon. His
power is supreme, and beyond the reach bf legisla-
tive limitations. When a full oardon takes effect,
all disabilities disaupear, and the grantee``atanda
as if he had never been convicted. A removal of the
conviction necessarily removes the disabilitles,be
cause they are but consequences of the conviction.
This would therefore restore the party to his-right
of suffrage, and his competency as a juror. The au-
thorities are clear upon these questions, as we un-
derstand them." (Emphasis ours.)
In the case of Scott v. State, 6 Tex. Clv. App. 343,
25 S.W. 337, which was an action of disbarment brought against
anattorney under a statute which provided that one who had
license to practice law and was convicted of a felony, should
have his name stricken from the roll of attorneys upon proof
being made in court of such fact, the defendant produced a
pardon for the offense of which he had been convicted. The
pardon was urged to the trial court when proof was offered of
his convlctlon, and objections made to such evidence being of-
fered by the State.. The trPa1 court overruled Scott and ad-
mitted the evidence, but the Court of Civil Appeals, through
Judge Stephens, said:
"We are of opinion that after he received an
unconditional pardon the record of the felony con-
viction could no longer be used as a basis for the
proceeding provided for in Article 226. This record,
when offered in evidence, was met with an unconditlon-
al pardon, and could not, therefore, properly be said
to afford 'proof of a conviction of any felony.' Hav-
Ing been'thus canceled, all its force as a felony con-
viction was taken away. A pardon falling short of this
would not be a pardon, according to the judicTa1 con-
structlon which that act of executive grace has re-'
ceived. Ex parte Garland, 4 Wall. 344, 18 L. Ed. 366;
Knote v. 0. S., 95 U. S. 149,,24 L. Ed. 442, and cases.
there cited; Young v. Young, 61 Tex. 191."
Texas Prison Board, page'4 O-2359
The judgment was reversedand rendered in favor of
Scott; upon the ground that his pardon wiped out the legal
consequences of his conviction.
In the,Case of Sanders v. State, 108 Tex. Cr. R. 467,
1~S. W. (2d) 901, appellant had~been the recipient of a sus-
pended sentence for one felony and during the period of the
suspension',he was finally convicted In another felony case;
The Statessought to impose sentence on the old case, but was
met with an unconditional pardon granted to cover the.most
recent one. The trial judge refused.to boncede this as a
bar',but the Court of-'CriminalAppeals said ~bg the full pardon
of a~ppellantin the last conviction the final judgmentwas
w~ipedout "to gether with all its dependent consequences '
and that 'the basis and foundation of the right of the s&e
to have him sentenced was ent?relg gone."
The judgment against Sanders was reversed, and the
cause ordered dismissed.
We quote from the case of United States v. Athena
Armory, 35 Ga. 344, 24 Feds.Cas. 878, 884:
"A pardon is an act of mercy flowing from the
fountain of bounty and grace. Its effect, when it is
a full pardon, is to-obliterate every stain which
the law attached to the offender; to place him where
he stood before he committed'the pardoned offense,
and to free him from the penalties and forfeitures
to which the law had subjected his personal property;
to acquit him of all penalties annexed to the offense
for which he obtafns his pardon.'
You are advised, in the 1Fght of the above quotations
and citations of authority, that if full and uncondltIona1 par-
dons are granted',with restoratfon of citfzenship, that in-
mates of the Texas Prison System, after their release, are
eliglble.to take the examination for, and upon meeting all
other'requirements of the Board of Hairdressing and Cosmetology,
to practice the profession or follow the occupation of coa-
metologiata. Without such pardon, the converse Is true, and
the secttons of the statute we set out above would constitute
a bar.
Texas Prison Board, page 5 o-2359
Yours very truly
ATTORNEY GJNERAL OF TEXAS
By s/Benjkmln WoocMll
Benjamln Woodtill
Assistant
BW:BBB:wc
APPROVED SEP 17, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Oplnlon Committee By s/BWB Chalrman