Untitled Texas Attorney General Opinion ( 1980 )

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The Attorney General of Texas
March 17, 1980
4ARK WHITE
dtorney General
Honorable Ben 2. Grant, Chairman Opinion No. Mw-148
House Judiciary Committee
State Capitol Re: Whether a person who has
Austin, Texas successfully completed felony
probation is eligible to be a peace
officer.
Dear Representative Grant:
You have requested our opinion regarding whether a person who has
successfully completed felony probation is eligible to be a peace officer.
SeCtion 8a of article 4413(29aa), V.T.C.S., provides:
(a) No person who has been convicted of a felony
under the laws of this state, another state, or the
United States may be certified by the Commission [on
Law Enforcement Officer Standards and Educationl
as qualified to be a peace officer. . . .
(b) Final conviction of a felony under the laws of this
state, another state, or the United States disqualifies
a person previously certified by the Commission ss
qualified to be a peace officer,. . . and the
Commission shall immediately revoke the certifica-
tion of a person 80 convicted.
Section 7 of article 42.12, Texas Code of Criminal Procedure provides:
. . .In case the defendant has been convicted em hss
entered a plea of guilty or a plea of nolo contendere,
and the court has discharged the defendant
hereunder, such court may set aside the verdict or
permit the defendant to withdraw hi plea, and shall
dismiss the accusation, complaint, information or
indictment against such defendant, who shall
thereafter be released from sR penalties and
disabilities resulting from the offense or crime of
which he has been convicted or to which be has
pleaded guilty, except that proof of his said
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Honorable Ben 2. Grant - Page Two (MW-148)
conviction or plea of guilty shall be made known to the court should
the defendant again be convicted of any criminal offense.
(Emphasis added). You ask whether a person’s release “from all penalties and disabilities”
is effective to prevent the commission from revoking his certification as a peace officer.
See w 557 S.W.%d 363 (Tex. Civ. App. - Austin 1977, no writ).
Section ‘I provides that, where the verdict against a convicted defendant hes been
set aside by the court, or his plea of guilty has been withdrawn, he is thereafter released
from aB penalties and disabilities which attach to the conviction, except that proof of
conviction shall be ma& known to any court in which the defendant is subsequently
convicted. In Attorney General Opinion M-840 ,(1970), this office held that section 7
restores the civfl rights of the convicted individual, and renders him thereby eligible to
vote and to serve on juries. Likewise, restoration of citizenship rights enables him to hold
office. Attorney General Ophdon M-1184 (1972).
But section 7 makes @ear that its effect is merely to restore the civil r’ hts of a
convicted defendant, rather than to remove all evidence of the conviction.h the
“right of . . . a defendant to state to [aI prospective employer that he has never been
convicted” is not a ” ‘pendty’ or ‘disability’ which was released by the statute,” such a
person may not truthfully deny his conviction in an application for employment. Attorney
General Opinion M-840 (1970). Similarly, we do not believe that a convicted defendant’s
release from all penalties and disabilities under section 7 means that ha no longer has a
“final conviction.” Final conviction of a felony automatically results in the disqualifica-
tion of a person previously certified, and requires the commission to “immediately revoke
the certification of a person so convicted.” & Cooper v. Texas Board of Medical
Examiners, 489 S.W.2d 129,132 (Tex. Civ. App. - El Paso 1973, writ rePd n.r.e.).
Although Texas courts have not construed the term “penalties and diiabiities,” the
courts of California have interpreted it on numerous occasions. ~ln Meyer v. Board of
Medical Bxaminsrs, 298 P.2d 1085 (Cal. 19491, the California Supreme Court construed
sectmn 1203.4 of the state penal code, which provided that in certaii instances where a
verdict is set spide and the court dismisses the indictment, a defendant %hall thereafter
be released from all penalties and disabilities resulting from the offense or crime of which
he has bean convicted.” Tbawurt, quoting from its earlier decision in In re Phillips, 109
P.2d 344 (CaL l94B, which involved the disbarment of an attorney, stated:
The power of the wurt to reward a convicted defendant who
satisfactorfly completes his period of probation by setting aside the
verdict and dismissing the action operates to mitigate hi
pm&hment by restoring certain rights and removing certain
dieabnities. But it cannot be assumed that the legislature intended
that such action by the trial court under section 1203.4 should be
considered as obliterating the fact that the defendant had been
findly adjudged guilty of a crime. This is made clear by the
provfsion that the fact of the defendant’s conviction can be used
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Honorable Ben Z. Grant - Page Three (m:14S)
against him in any later prosecution, despite dismissal of the action
under .seation 1203.4. In brief, action in mitigation of the
defendant% punishment should not affect the fact that his guilt has,
been fiiy determined according to law. Such 4 final
determination of guilt is the basis for the order of disbarment in
this case. That final juc@ment of conviction is a fact: and its
effect cannot be nullified for the purpose here involved, either by
the order of probation or by the later order dismissing the action
after judgment.
206 P.2d, at 1087.
Likewise, in 4Co eland v. De 50 CaL Rptr.
452 (Cal. Dist. Ct. App. 19661, the court said that
. . .the disciplining of licensees . . . is for the protection’of the
public in the exercise of the police power and not .for the purpose
of punishing any licensees. . . . It is settled that proceedings to
suspend or revoke business or professional licenses ara not included
among tha penalties and disabilities that are released by a dismfssal
pursuant to saation 1203.4.
50 CaL Rptr., at 453. Thus, it is our opinion that an individual’s release “from all
penalties and disabilitie@ under section 7 of article 42.12, Code of Criminal Procedure, is
not effective to prevent the Commission on Law Enforcement Officer Standards and
Education from revoking his certification as a peace officer.
SUMMARY
An individual% release from “all penaDies and disabilities” under
section 7 of article 42.12, Texas Code of Criminal Procedure, is not
effeative to prohibit the Commission on Law Enforcement Officer
Standards and Education from revoking his certification as a peace
officer.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
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Honorable Ben Z. Grant - Page Four (NW-148)
Prepared by Rick Gil@
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairmen
Gerald Carruth
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 476