RNEY GENERAL XAS

Honorable 0. N. Ehnnphreys, Jr. Administrator **@iniOn NO.**  M-789 Texas AlcoholicBeverage Re:, The effect of a GoverCommission Capitol Station nor's pardon granted to a convicted felon who Austin, Texas 7871.1 makes applicationfor a Wine and Beer Retailer's Permit prior to the expiration of three years next succeeding.

the granting of 6uch GoverDear Mr. Humphreys: nor's pardon. Your request for an opinionpresents the followingquestion: Whether or not an applicantwho has previously been convicted of a felony and sentencedto a term of thirty years in the Texas Departmentof Corrections and thereafterplaced on parole, is aisqualified from receivinga Wine and Beer Retailer'sPermit even though he was granted a full pardon on May 26, 1970, by the Governor for his conviction on September 28, 1955. Article 667-5F,Vernon's Penal Code, provides in pertinent part, as follows:

" (aJ the county judge shall refuse any original applicat on for a Retail Dealer's On-PremiseLicense or a Wine and Beer Retailer'sPermit if he finds that the individualapplicant,or the spouse of such applicant, has at any time during the three years next preceding the filing of such application been finally convicted of a felony, or any of the followingoffenses: 11

. . . . "(9) violation of penal law involvingfirearms or other deadly weapons or if he finds that three

-3838-Honorable 0. N. Humphreys,Jr., page 2 (M-789)

years has not elapsed since the terminationof any sentence,parole or probation served by the applicant,or the spouse of such applicant,as the result of a felony prosecution,or prosecution for any type of offensenamed herein. II II

. . . The annotationin 31 ALR2d 1186 discusses the effect of a pardon on a prior felony conviction where it is sought to use such prior felony Convictionfor the purpose of enhancinga subsequent conviction. The annotationindicatesthat there is a split of authority. 'Themajority'sview is that a pardon does not serve to obliteratethe prior felony conviction where it is sought to be used in enhancement proceedings,the minorityts view'being,tothe contrary. Until 1941 Texas had voted with the minority,holding that the pardoningpower of the Governorwiped out the .existence

of a former convictionand left the record as though ithad never been. In Jones v. State, 147 S.W.2d 508 (Tex.CriLApp.1941)the Texas Court of CriminalAppeals declined to follow the former decisions,thus joining the ranks of the majority. After tracing the history of what they consideredto be an erroneousdecision, the court explained its reasons for a change of-

course: "Again this court has consistently held that a witnessmay be examined as to his previous conviction for the purpose of enlightening the jury as to his credibilityand this though the Governorhad granted him a full and unconditional pardon. We find no condition under which our courts have ever held the Governor's pardon to effectively wipe out the existenceof a fact, save and except in the applicationof the enhancement statute. Our holding herein will be consistent with the holding on the ~samesubject in all other cases. "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 psges'written by the court's decree are in the minutes still." (at p* 511.) To the same effect is a case in the Court of Wiminal Appeale of Texas'the fbllowingyear, Square v. State, 167 S.W.2d 192 (Tex. Crim.App. 1942.) In overrulingthe motion for rehearingthe court

-3839-Honorable 0. N. Humphreys,Jr,, page 3 (M-789)

cited approvinglyJones v. State, 147 S.W.2d 508, saying:

this court declined to follow the former'd&ions so that it may now be said that the pardoningpower of the executivehas no effect whatsoever on the judgment or any portion of the ~~&~;o~ior tf the date of the governor'spro-

. . . (at P. 194.) In 30 AIB2d 893, the annotationconcludesthat a prior felony conviction

may be used for impeachmenteven though such convicted felon has been granted a pardon for such offense. To' the'same effect is Bernard's, Inc. v. Austin, 300 S.W. 256 (Tex. Civ.App. 1927, error ref.) I thi held that the impeachingevidkce h the court ~fC~~~'wi~~~~~~'conviction, fourteenyears before the trial, was too remote. In Handksmerv. Templin, 143 Tex. 572, 187 S.W.2d 549 (1945) the Texas Supreme Court had before~,it the case of a lawyer who had been disbarred followinga felony conviction. He had been sentencedto the penitentiaryfor a term of years and thereafter paroled. Later, he was granted by the Governor of the State a full pardon. Denying the disbarred lawyer's applicationfor a Writ of Mandamus the court said:

"The full pardon removed from petitionerthe penalties and disabilities which attached in virtue of his convictionand restored to him his civil rights; but, as pointed out Ex Alabama 342, 10 so.2a 3 Parte Stephenson,supra (243

, 'the pardon and restoration of his political and civil rights do not of themselves restore the petitionerto the office of sn attorney.' ' (at P. 550-551) To the same effect is the Californiacase, Feinsteinv. State'Bar, 248 P.2d 3 (Cal.Sup.1952) there the court said th t a does not reinvest the applicantwith those essenti%sar~~i% of an attorney. From the foregoingtherefore, it seems clear that a Governor's pardon does not wipe the slate clean so as to completelyobliterate the convictionfrom the record. Consideringthen that the legal burdens of the convictioncontinue to exist up to the time of the issuance of the pardon by the Governor, the only effect that can be ascribed to such pardon is the terminationof those

-3840-Honorable 0. N. Humphreys,Jr., page 4 (M-789)

burdens. Therefore,the pardon of the Governorhas only the effect of a ~"termination of parole" within the language of Article 667-5F, supra. Therefore,the applicantwill be required to wait a period of three years subsequentto the issuance of the pardon before he is eligible to make application for a permit. SUMMARY

The applicationfor a Wine and Beer Retailer's Permit by a person who was convictedof a felony on September 28, 1955, and sentencedto thirty years in the Texas Departmentof Corrections, and who was granted a full pardon by the Governor on May 26, 1970, may be consideredafter May 26, 1973. The pardon does not obliteratethe conviction from the record for the purpose of administering the Texas Liquor ControlAct. 6 very truly,

Preparedby Max P. Flusche AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman Ben Harrison Dick Chote Austin Bray Bob Lattimore MFADE F. GRIFFIN Staff Legal Assistant AI,FRND WALKER ExecutiveAssistant NOLA WHITE Pirst Assistant -3841-