Untitled Texas Attorney General Opinion ( 1995 )

QBfficeof tfy ~ttornep QaeneraI
Sbtateof Gexae
DAN MORALES
Al-r”RNEY
GENERAL May 31.1995
Mr. Vior Rodriguez Opiion No. DM-349
Chair
Texas Board of Pardons and Paroles Re: Wbetber a person wbo Ius successfully
t’.O. Box 599 completed deferred adjudication ~comtnunity
Huntsville, Texas 77342 SUpUViSiOll~WbOlUtSbeendiSCb8l.gCd
after dismissal of charges pursuant to eection
5(c) of u-tide 42.12 of the Code of Ctiminal
Procedure is eligibleto apply to the Board of
Pardons end Paroles for a pardon (RQ-683)
Dear Mr. Rodrigtlez:
Your predecessor asked this office wbetber a person wbo has succcssftdly
completed deferred adjudication comnhty supervision I&I who has been discharged
atIer dimissd of charges pursuant to seotion S(c) of srticle 42.12 of the Code of Criminal
F9acedure is eligiile to apply to the Board of Partixui and Paroles (the “board”) for a
pardon. The board exists by virtue of article 42.18 of the Code of CriminalProcedure (the
“code”) and the mandate of section 11(a) of a&e IV of the Texas Constitution.
Subsection (b) of section 11 and code article 48.01 botb provide in patinent part as
follows:
In8llcrimindcdsqexcepttmsonandimpmcbn~the
Governor shall have power, qfffrr com+fiorr, on the written signed
recommendation and advice of the Board of Pardons and Paroles, or
a majority thereof; to pant repiieves and commutations of
punishments and pardons. . . .
Tex. Const. ert. IV, 5 11(b) (emphasis added); Code Grim. Proc. ert. 48.01 (emphasis
added).’
Mr. Victor Rodriguez - Page 2 (DM-349)
Your predecessor explained that persons who have successfully completed
deferred adjudication community supervision rue seeking full pardon9 after the dismissal
of their &minsl charges pursuant to code article 42.12, section S(c). These persons
apparently wish to benefit from the pardons they seek by obtaining expunction of their
arrest records. See Code Grim. Proc. art. 55.02 (setting forth procedure for expunction).
They would claim in a petition for expunction that they are entitled to such relief under
code article 5501(a)(l)(B), which provides as follows:
(a) A person who hss been arrested for commission of either a
felony or misdemeanoris entitled to have all records and files relating
to the mest exptmgedif:
(1) the person is tried for the offense for which the person was
arrested end is:
....
(B) convicted and subsequentlypardoned. . . .
Your predecessor asked whether the requirement of a “conviction”in the above-
quoted wnsthutional and staMory pardon provisions disquahges these persons from
pssdon eligibility for the reason that they have not undergone an “adjudication of guilt,
id. rrt. 42.12, 0 5(c). Your predecessor explained the reason for this question in part as
follows: “Since there is no conviction when charges are dismid our staff questions
whether the policy of accepting applications for fidl psrdons is appropriate when there is
no wnviction.”
Subsections (a) to (c) of section 5 of code article 42.12 provide in part as follows
(with emphasis added):
(a) Except as provided by Subsection (d) of this section, when
in the judge’s opinion the best interest of society and the defendant
wig be served, the judge may, qtier receiving opleo of guif@or plea
of nolo cmten&re, hearing tk evidence, and findig that it
srrbsrenriolrsthe &femkmt ‘sguilt, defer further proceedings without
entering an adjudication of guilt, and place the defendant on
community supervision. . . .
p. 1858
Mr. Victor Rodriguez - Page 3 (DM-349)
(b) On violation of a condition of community supervision
imposed under Subsection (a) of this section, the defendant may be
arrested and detained as provided in Section 21 of this article. The
defendant is entitled to a hearing limited to the determination by the
COWIof whether it proceeds with an adjudication of guilt on the
o@d charge. No appeal may be taken from this determination.
After an adjudication of guilt, all proceedings, including assessment
Of punishment, pronouncement of sentence, granting of community
arpavision, and defendant’sappeal continue as ifthe adjudication of
guilt had not been deferred.
(c) &I expiration of community supervision imposed under
Subsection (a) of this section, if the judge has not proceeded to
adjudication of guilt, thefudse rho11Amisr the proceedings against
the &fendmt anddtscharge him. , . .
Weareoftheopinionthatapersonchargedwithauiminaloffbnsewhohas
successlYly completed defbrred adjudication community supervision is not eligible to
apply to the board for a pardon, but we believe it is unnecemary to determine whether
deferred adjudication involves a “conviction” in order to reach this conclusion. If a
6ndmg of substantiated guilt under section 5(a) of code article 42.12 is not a %onviction”
for purposes of the governor’s constitutional pardon power, then the govemor has no
power to grant a pardon for the offense for which the defendant was found guilty because
the pardon could not be granted “after conviction,”Tex. Const. art. IV, 8 1l(b). On the
other hand, if a fmdhrg of substantiated guilt is a %.onviction,”then for the following
reasons a subsequent dismissal of the proceeding without an “adjudication of guilt”
pursuant to section S(c) would remove the matter from the governor’s pardon power.
Subsection (c) continues after the above-quoted passsge to provide that, generally,
“[a] dismissal and discharge under this section may not be deemed a conviction for the
purposes of disqualificationsor disabilitiesimposed by law for conviction of an offenses,”
but that the defendant’s prior receipt of deferred adjudication community supervision may
be considered in the punishment phase of a prosecution for a subsequent offense, Code
Crim. Proc. an. 42.12, $5(c)(l); see id. art. 37.07, 5 3, or in the process of determining
whether to issue. renew, deny, or revoke either of the following: a license to operate a
child-care facility or child-placingagency, id. art. 42.12. 0 5(c)(2); me Hum. Res. Code
ch. 42, or a license or registration to provide rehabiitative mental health or medical
se&es to scx offenders, Code Grim. Proc. art. 42.12, 0 5(c)(3); see V.T.C.S. art.
413(51).’ we are of the opinion that none of the provisions in subsection (c) establish
penalties or d&bilities that are within the governor’s power to forgive by pardon.
p. 1859
Mr. Victor Rodriguez - Page 4 (DM-349)
A pardon (other than one based on a finding of actual innocence) can relieve a
person only from the punishmentthst the law attaches to the commissionof a crime.
Clemency power is vested in the Governor to the extent only that he
can remit fmes imposed which remain unwllwted and discharge the
wnvicttromtIntherpenslservice.. . .
. . . .
The Governor csn forgive the penalty, but he hss no power to
direct that the courts shall forget either the crime or the conviction.
Jones v. State, 147 S.W.Zd 508,511 (T&x.Grim. App. 1941). Any rights of citizenship
that were lost as a result of the wnviction constitute a plvt of the punishment for the
crime, .so the governor also may restore such rights by pardon. Miller v. State. 79 S.W.
567. 567-68 (Tar. Grim. App. 1904) (pardon restores testimonial wmpetenq); see
Eprrcnooad v. Srafe, 31 S.W. 2%. 2% (Tex. Grim. App. 1895) (fill pardon restores
rights of jury service and sufkage). Bkk’s Law DicHw dafkes pordm as ‘[a]n
exwutivc action that mitigates M sets aside p&&nent for a crime- and “restores the
rights and privileges forfeited on account of the offense.” BUM’S LAWDICTIONARY
1113 (6th cd. l!ao).
(1) uponcowinionofr~to6asc,tbchcttbatthcdcfcndanthod
previotlslytcwivcdconlnltity supavklollwall8 dda7cd a&ldkationof @lilt
SlUUbCdlOkdbkbCfO?CthCCOWtOIjuytObCcosrridacdOllUlCiWJCOf
parslty;
CodeCrh F’mc.ut 42.12.05(c)@“‘~huir ddcd).
p. 1860
Mr. Victor Rodrig& - Page 5 (DM-349)
A pardon does not, howwer, “‘obliterate the fact of the commission of the crime
and the wnviction therefor, it does not wash out the morsl stain,“’Jones, 147 S.W.Zd at
510 (quoting 46 C.J. Parulw 8 32, at 1193 (1928)); acwrdErparte Smith, 548 S.W.Zd
410,414 (Tex. Grim. App. 1977), ovemded on other ground%by Expmle Blume, 618
S.W.Zd373,376 (Tex. Grim. App. 1981), unless the pardon is based on actual immcence,
see Logon v. State. 448 S.W.Zd 462, 464 (Tex. Crbn. App. 1969) (there would be no
offense if pardon was based on finding of innocence). A prior conviction may be offered
,@evidence in a subsequentprosecution for the purpose of enhancementof punishment,id.
at 511-12; 9ce Pensl Code 0 12.42, or to bar statutory eligiii for probation
wnsideration, Watkinsv. Store. 572 S.W.Zd339,343 (Tex. Crim. App. 1973); see Code
Grim. Proc. art. 42.12.0 4(e). regardless of the fict that the defendant has rewived a 111
pardon.’ Siiy, a prior conviction that has been pardoned for any reason other than
hmownw is -availableto deny bail under Texas Constitution article I, section 11-A, Er
purte Smith, 548 S.W.Zd at 414. or lo prove the offenses of possession of firearms by a
convicted felon, Rrmo v. S&zfe,556 S.W.2d 808, 809 vex. Grim. App. 1977). and
possession of burglary tools by a wnvicted felon, m v. Skafe,448 S.W.2d at 463-64.
Furthermore, a felon who testifies may be subject to impeachment by proof of his
conviction even ifhe has been pardoned, Sipanekv. Stute, 272 S.W. 141.142 (Tex. Crim.
App. 1925); see Tex. R Crim. Evid. 6OQ.unless he shows that the pardon was gmnted on
the ground of immcence or total reformation, Bennett v. State, 5 S.W. 527. 529 (Tex.
App. 1887). In the absence of such a showing, a pardon “does not change the wmmon-
law principle that the wnviction of an infamous offense is evidence of bad character for
truth.” Id. Fiiy, a pardon will not restore the 05ce of attorney to a penon who has
been disbarred because of a prior conviction or restore the good character that the person
must possess to be admitted to the bar. Hankamerv. Templin, 187 S.W.Zd 549. 550
(Tex. 1945).’
The foregoing authorities show that ~apardon that is not based on a Ming of
innocence may reach only the punishments,penalties, disabilities,and disqualikttions that
the law would attach to the pardoned conviction. Such a pardon neitheraffects the penal
wnsequences of any subsequent offenses nor restores a person’s reputation or good
character. Jones, 147 S.W.Zdat 510-11.
Therefore, lo the extent that the law permits the fact of a prior conviction lo be
considered (1) in assessing the pensl wnsequenws of a subsequent offense or (2) in
determining whether the jkrson possesses the good character requkd for licensing in a
p&ion of mspwsiiity and trurt, the governor has no power to intervene by granting
p. 1861
tar. vztor~octnguu - rage 6 wn-39,
such a pardon. The provision in subsection (c)(l) of section 5 of article 42.12 is of the
former nature; that subsection merely authorizes consideration of the prior conviction in
assessing the panal wnsequences of a subsequent offense. The provisions of subsections
(c)(2) 8nd (c)(3) are of the latter nature; those provisions are merely limited grants of
authority to consider the fact of the defbndant’sprior guilt when that guilt is relevant to
the defmdaot’s character. None of the provisions in subsection (c) constitute wntinuing
penalties M disltbiities.
Because nothing remainstobepardonedafkrchargesaredismissedandthe
defkndant is dischsrged pumant to subsection (c). we are of the opinion that any
purported pardon of an o&se issued a&r dismissaland discharge would be a nullity for
lack of an object. Cj. Miller, 79 S.W. at 56768 (goveroor may extead clemency even
atier sewico of sentence on felony wnviction because such wtiction continues to
deprive defendant of certain civil rights we-n after expiration of sentence).” wore, a
defendant who has been dischmged under subsection (c) is not eligible for consideration
fbrapardon.
In closing, we note that an arrest that leads to prosecutioq defked adjudication,
andultimatelydismissalofchargesisnotalegaldisabii. Thefhctthatapersonhasbcen
~GSkdllUybeUlIb armssingandmaycauseproblemssuchasdifiiatltyinobtaining
employment, and it may be tNe that exptmctionof the rewrd of arrest would be of great
benef%totheperson. Nev&eless,anarrestisnotapunirhmentorlegaldisabiiarising
&om a conviction. Article 55.01 of tbe Code of Crimbial Procedure grant, a right of
arpunctionofrmstrecords~61eswhenapmonhrrbeenwnvictedudthen
pardoned, but it does not empower the governor to pardon an arrests
p. 1862
Mr. Victor Rodriguez - Pbge 7 (DM-349)
SUMMARY
A person who has successfullywmpleted deferred adjudication
wmmtmity supervision and who has been discharged after dismissal
of charges pursuant to section 5(c) of article 42.12 of the Code of
Criminal Procedure is not eligible to apply to the Board of Psrdons
and Paroles for a pardon for the crime of which the person was found
guilty. for such a person has no legal dkahiities or disqualifications
resulting from the deferred adjudicationthat are subject to remission
by pardon.
DAN MORALES
Attomcy General ofTexas
JORGE VEGA
FiiAssiuantAttomeyGenenll
SARAH J. SHIRLEY
Chair, Opinion Committee
p. 1863