## KEN PAXTON ATTORNEY GENERAL OF TEXAS April 17, 2017

The Honorable Jerry D. Rochelle Opinion No. KP-0138 Bowie County Criminal DistrictAttorney 601 Main Street Re: The effect of a conviction in another state, and a subsequentrestoration ofrights by the other state, on an individual's abilityto run for orhold public office in Texas (RQ-0131-KP) Texarkana, Texas 75504

Dear Mr. Rochelle: You seek an opinion on "whether an individual who was sentenced under

...theArkansas First Offender Act and Who[se] rights were restored pursuant to the statutes ofArkansas and so ordered by the Circuit CourtinArkansas may run for office in Texas."1 Information included with your request shows that a former mayor ofMaud, Texas, pleaded guilty to a felony theft offense inArkansas twenty-two years ago. 2 Documents attached to your request letter reveal that in 1994 the individual received a five-year "probated suspended sentence under [Arkansas] Act 346

... conditioned upon his future good behavior" and the payment ofcertain fees and costs in Clark County, Arkansas. See Attachment to Request Letter, (Motion to Terminate Probation). The individual was discharged early afterhaving "satisfactorily fulfilled the conditions ofhis probated sentence." Attachment to Request Letter, (Order Terminating Probation). Some citizens in Maud question whetherthis individual is eligible for public office in Texas underthe Election Code. See Request LetterandAttachmentto Request Letter;3

### see also TEX. ELEC. CODE§ 141.00l(a)(4). The citizens also question whetherthis individual violatedTexas lawin filing an application for aplace

1 See Letter and attachment from Honorable Jerry D. Rochelle, Bowie Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Sept. 26, 2016), https://www.texasattomeygeneral.gov/opinion/requests-foropinion-rqs ("Request Letter" and "Attachmentto Request Letter" respectively) (Attachmentto Request Letter on file with the Op. Comm.)

..
2See Attachment to Request Letter, Lynn LaRowe, Maud Mayor Not Guilty ofMaking False Claim, TEXARKANA GAZETTE (Sept. 14, 2016), http://www.texarkanagazette.com/news/Texarkana/story/2016/sep/14/maudmayor-not-guilty-making-false-claim/640085/).

3Letter from Glenda Wilson to Honorable Jerry Rochelle, Bowie Cty. Crim. Dist. Att'y (Sept. 16, 2016) (on file with the Op. Comm.).The Honorable Jerry D. Rochelle

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onthe ballot.4 See TEX. ELEC. CODE§ 141.031(a)(4)(G) (requiring a candidate's application for a place onthe ballotto include a statement regarding the candidate's lack offelony convictions). Election Code subsection 141.001(a)(4) makes ineligible for public office in this State a person who is "finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities." Id. § 141.001(a)(4). At the time of this individual'scriminal matterbefore anArkansas court,ArkansasAct346 authorized a courtto defer proceedings of a "defendant who previously has not been convicted of a felony" and place the defendant on probation "without

... entering a judgment of guilt." ARK. CODE § 16-93- 303(a)(l)(A)(i) (1995); see State v. Webb, 281 S.W.3d 273, 274 (Ark. 2008) ("Act 346 of 1975, known as the First Offenders Act, is codified at ARK. CODE §§ 16-93-301-16-93-305."). Upon a defendant's "fulfillmentofthe terms and conditions ofprobation oruponrelease bythe courtprior to the termination period thereof," a court was required to discharge the defendant "without court adjudication of guilt" and dismiss the case. ARK. CODE § 16-93-303(b) (1995); see Duncan v. State, 823 S.W.2d 886, 887 (Ark. 1992) (recognizing that a deferment underArkansas Act 346 is not a conviction); cf, TEX. CODE CRIM. PROC. art. 42.12(20). Nothing in the information you submitted to us demonstrates that the individual about whom you ask was finally convicted ofa felony by the Arkansas court. See Attachment to Request Letter, (Order Terminating Probation); Duncan, 823 S.W.2d at 887 (recognizing that a deferment underAct 346 is not a conviction). Even ifArkansas law considered the individual to have been "finally convicted," the plain language ofElection Code section 141.001(a)(4) applies to only a final conviction "from which thepersonhas notbeenpardoned orotherwise released.from the resultingdisabilities." TEX. ELEC. CODE § 141.001(a)(4) (emphasis added); see In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 280 (Tex. 2016) ("When construing a statute, we look to the plain language to determine the intent ofthe Legislature."); cfTEX. CONST. art. XVI,§ 2 (directing the Legislature to make laws imposing civil disabilities for conviction ofcertain crimes).5 Thus, a person released from the disabilities ofa final conviction is not disqualified under subsection 141.001(a)(4) from holding public office inTexas. And the information you provide establishes that pursuant to Arkansas Act 346, an Arkansas court ordered the termination of this individual's probated sentence. See Attachment to Request Letter, (Order Terminating Probation). Thatjudicial order states that the individual at issue here is "exonerated ofany criminal purpose, and

... is herebyreleased from all penalties and disabilities" resulting from the criminal proceedings." Id. Article IV, section 1 ofthe United States Constitution requires that-each state give "full faith and credit" to "the public acts, records, andjudicial proceedings ofevery other state." Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex. 1992) (quoting U.S. CONST. art. IV, § 1 ). The Clause requires each state to recognize and give effect to validjudgments rendered by the courts ofits sister states. See Bard, 839 S.W.2d at 794-95. With respect tojudgments, the "full faith and credit obligation is exacting. A final judgment in one State, ifrendered by a court

4See id.

5See e.g., TEX. ELEC. CODE § 11.002(a)(4) (qualification as a voter); TEX. Gov'T CODE § 62.102(8) (disqualification fromjury).

### The Honorable Jerry D. 

### Rochelle

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with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land." Baker v. Gen. Motors Corp., 

### 522 U.S. 222, 233 (1998); see alsoMilliken v. Meyer, 

### 311U.S.457,462 (1940) ("[I]fthejudgmentonits face appears to be a record ofa court ofgeneraljurisdiction, suchjurisdiction overthe cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself." (quotation marks omitted)). Absent any evidence thatthe Arkansas court'sjudgmentwas invalid, the Full Faith and Credit Clause requires the State ofTexas to recognize the Arkansas court's order. Accordingly, the individual'srelease from the penalties and disabilities ofthe offense by anArkansas court must be recognized by Texas as a release ofpenalties and disabilities ofthe offense. CfAttachment to Request Letter, (OrderTerminating Probation) (stating that "Movant is exonerated ofany criminal purpose, and Movant is hereby released from all penalties and disabilities resulting from this proceeding"). As the penalties and disabilities ofthis individual's offense have been removed, subsection 141.001(a)(4) does not render him ineligible to hold public office in Texas. See 

### TEX. ELEC. CODE§ 141.001(a)(4) (making ineligible aperson who is "finally convicted

... [or] has not beenpardonedor otherwise released from the resulting disabilities" 

### (emphasis added)). Whilethis office does not determine as amatter oflawwhetherparticularactions constitute a criminal offense, we can advise you that because the individual's release of penalties and disabilities is withinthe scope ofElection Code subsection 141.001(a)(4), it is unlikelythat a court would determine this individual violated section 141.031 by failing to identify the 1994 Arkansas court action on his application for a place on the ballot. See 

### Tex. Att'y Gen. Op. No. GA-0956 (2012) at 3 (stating that the question whether "aperson has committed a crime in any particular circumstances is a question offact that cannot be resolved in an attorney general opinion").

### The Honorable Jerry D. Rochelle

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### SUMMARY Under the Full Faith and Credit Clause ofthe United States Constitution, the State ofTexas must recognize an Arkansas court's valid order dismissing a felony charge and releasing an individual from the penalties and disabilities ofthat charge inArkansas. An individual for whom the penalties and disabilities have been removed by an Arkansas court is not prohibited by Election Code subsection 141.001(a)(4) from holding public office in Texas.

JEFFREY C. MATEER FirstAssistantAttorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee CHARLOTTE M. HARPER Very truly yours,

# 4~~ KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee