Untitled Texas Attorney General Opinion ( 1975 )

April 18, 1975
The Honorable Dolph Briscoe Opinion No. H- 587
Governor of Texas
State Capitol Building Re: Difference between
Austin, Texas 78711 “pardon” and “restora-
tion of citizenship” under
article 42.12, section 24.
Dear Governor Briscoe: Code of Criminal Procedure.
You request our opinion as to the distinction, if any, between a “pardon”
and “restoration to citizenship. I’ Article 42.12, section 24, Texas Code of
Criminal Procedure, provides as follows:
Whenever any prisoner serving an indeterminate
sentence, as provided by law, shall have served for
twelve months on parole in a manner acceptable to
the Board, it shall review the prisoner’s record and
make a determination whether to recommend to the
Governor that the, prisoner bepardoned and finally
discharged from the sentence under which he is serving.
When any prisoner who has been paroled has
complied ~5th the rules and conditions governing his
parole until the end of the term to which he was
sentenced, and without a revocation of his parole,
the Board BhalI report such fact to the Governor prior
to the issuance of the final order of discharge, together
with its recommendations as to whether the prisoner
should be restored to citizenship. (Emphasis added).
In your letter, you indicate that the Texas Board of Pardons and Paroles
forwards cases to you with the recommendation that some individuals be
granted a “full pardon” and that some be restored to “full rights of citizenship
only. ” You ask, “what rights are restored by the grant of a ‘full pardon’ and
what rights are restored by a ‘restoration of full rights of citizenship’ only. ”
p. 2619
The Honorable Dolph Briscoe, page 2 (H-587)
Conviction for a felony in Texas carries with it, besides a judicially
determined punishment, a deprivation of certain rights of citizenship. Tex.
Const. art. 16, sec. 2; Election Code, arts. 1.05 (holding office) and 5.01
(voting): art. 2133, V. 1. C.S. (serving on trial juries): Code Crim. Proc.,
arts. 19.08, 35.12, 35.16 (serving on grand and petit juries); Additionally,
conviction of a felony (and in some cases, a certain type of misdemeanor) bars
entry into and continuance in a great number of businesses and professions.
See e&, art. 311, V. T.C.S. (the practice of law): art. 581-14, V. T. C.S.
(security dealer or salesman); and art. 845la. V. T. C. S. (cosmetology).
The Governor has been granted the power to pardon convicted felons
on the recommendation of the Board of Pardons and Paroles. Tex. Const.
art. 4, sec. 11; Code Crim. Proc. art. 48.01. As early as 1881 and as
recently as 1973, Texas courts have attempted to describe the legal effects
of a pardon. Rivers v. State, 10 Tex.Crim. 177. 182 (1881). quoting section
762 of 1 Bishop Criminal Law (4th ea..), stated:
The effect of a full pardon is to absolve the party
from all the legal consequences of his crime and
of his conviction, direct and collateral, including
the punishment, whether of imprisonment. pecu-
niary penalty, or whatever else the law has pro-
vided.
But there are limitations to the effect of a pardon. In Jones v. State,
147 S. W. 2d 508 (Tex. Crim. App. 1941), the court overruled its prior holdings
and held that a pardon does not negate the fact that a crime was committed
and therefore, the prior pardoned conviction may be used for enhancement
purposes. The court explained:
He [executive] can pardon, but, ‘as the very essence
of a pardon is forgiveness or remission of penalty,
a pardon implies guilt; it does not obliterate the fact
of the commission of the crime and the conviction
therefor; it does not wash out the moral stain. As
has been tersely said, “it involves forgiveness and
not forgetfulness. ‘I ’
. . .
p. 2620
The Honorable Dolph Briscoe, page 3 (H-587)
In our state, as in the other states of the Union,
the executive is not given appellate jurisdiction
over the acts of the judicial branch of the govern-
ment, and without which he can have no power to
destroy its judgments and decrees. He must take
them as he finds them.
. . .
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. pages written by
the court’s decree are in the minutes still.
In Logan v. State, 448 S. W. 2d 462, 464 (1970). the Court of Criminal
Appeals elucidated its pronouncement inJones, by observing that a prior
conviction could not be used to enhance where:
. . . the pardon was predicated upon a finding by
tbe executive department. . . that appellant was
not guilty of the offense for which he was convicted
. . . (because) there would be no offense . . .
(however) . . . .
’ [a] pardon for any other reason than
the subsequent proof of innocence does
not obliterate the defendant’s previous
transgressions . . .’
The word “pardon!’ when not otherwise qualified by “conditional” or
“partial” and the term “full pardon” are one and the same so far as their
legal effect is concerned, unless the pardon is granted because .thk prisoner
is not guilty of the offense for which he was convicted. Carr v. State; I9
Tex. Crim. 635, at 663 (1885).
A pardon restores all civil rights lost because of the pardoned conviction
--suffrage, holding office, and competency as a juror. Easterwood v. State,
31 S. W. 294 (Grim. App. 1895) held that a pardoned felon may sit as a juro:
and vote in the elections. Even though there are no cases whicb~ specifically
hold that a pardon by the Governor restores the right to ~hold office, the 1967
amendment to article 1.05 of the Election Code couches its-rest.riction against
felons in terms of voting disabilities, and therefore those cases holding that a
p. 2621
The Honorable Dolph Briscoe, page 4 (H-587)
felon is restored his voting rights by a “full pardon” apparently are also
authority for the proposition that a felon is restored his right to seek and
hold office. Attorney General Opinion M-1184 (1972) held that under
article 780 of the 1925 Code of Criminal Procedure and section 7 of
article 42.12 of the 1965 Code of Criminal Procedure, a convicted felon
may have his rights of citizenship restored. Once these rights are restored,
the person is eligible to hold office.
Article 6252-25, V. T. C. S., provides for compensation to persons
wrongfully convicted who secure a pardon, and who prove by a preponderance
of the evidence that they are not guilty of the crime for which they were con-
victed. A restoration of civil rights alone may not satisfy the terms of said
article.
A pardon or restoration of citizenship will not automatically restore
collateral privllegee associated with a license to engage in certain businesses
or professions, but either may open the door to reinstatement. Hankamer v.
Terndin, 187 S. W. 2d 549 (Tex. Sup. 1945).
Restoration of civil rights has not been defined in case law and appears
only in section 24 of article 42.12, as stated above. See Code Grim. Proc.
art. 48.01, et seq. Section 24 applies only to prisoneyon parole or who
have completed their paroles. By the terms of the statute, for those prisoners
who are still serving on parole, the Board may “recommend to the Governor
that the prisoner be pardoned;” for those prisoners who have completed their
parole, the Board may recommend that the prisoner be “restored to citizen-
ship. ”
However, the Governor has the constitutional power to grant a pardon to
a paroled prisoner who has completed his parole, despite the language in
section 24. Tex.Const. art. 4, section 11; Code Crim. Proc., art. 48.01;
State ex rel Smith v. Blackwell, 500 S. W. 2d 97 (Crim. App. 1973); Hunnicutt
v. State, 18 Tex.Crim. 498 (1885).
There is no indication in section 24 of a difference between the recommendation
of pardon or restoration of citizenship other than the status of the paroled
prisoner to which they apply.
In view of the absence of express language in the pardon so stating, Texas does
not ascribe a sense of moral forgiveness to a pardon; therefore, a pardon and
restoration of citizenship reinstate the same rights under section 24 of article
42.12 of the Code of Criminal Procedure. -See, Logan v. State, supra: Jones v*
State, supra.
p. 2622
The Honorable Dolph Briscoe, page 5 (H-587)
SUMMARY
For tbe purposes of article 42.12, section 24,
Code of Criminal Procedure, there is no difference
in the rights reinstated by a pardon or a restoration
to citizenship.
A restoration to citizenship might not satisfy
the terms of article 6252-25, V. T. C. S., which
require a pardon and a proof of innocence for an
award of compensation to a wrongfully convicted
person.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2623