RNEY GENERAL 

XAS 

Honorable 0. N. Ehnnphreys, Jr. 

Administrator 

@iniOn NO. M-789 

Texas Alcoholic Beverage Re:, The effect of a GoverCommission 

Capitol Station 

nor's pardon granted to 

a convicted felon who 

Austin, Texas 7871.1 makes application for 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 opinion presents the following question: 

Whether or not an applicant who has previously 

been convicted of a felony and sentenced to a term 

of thirty years in the Texas Department of Corrections and thereafter placed on parole, is aisqualified from receiving a Wine and Beer Retailer's Permit 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-Premise License 

or a Wine and Beer Retailer's Permit if he finds that 

the individual applicant, 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 following offenses: 

11 

. . . . 

"(9) violation of penal law involving firearms 

or other deadly weapons or if he finds that three 

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

years has not elapsed since the termination of 

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 offense named herein. 

II II 

. . . 

The annotation in 31 ALR2d 1186 discusses the effect of 

a pardon on a prior felony conviction where it is sought to use 

such prior felony Conviction for the purpose of enhancing a subsequent conviction. The annotation indicates that there is a 

split of authority. 'The majority's view is that a pardon does 

not serve to obliterate the prior felony conviction where it is 

sought to be used in enhancement proceedings, the minorityts 

view'being ,to the contrary. Until 1941 Texas had voted with the 

minority, holding that the pardoning power of the Governor wiped 

out the .existence of a former conviction and left the record as 

though ithad never been. In Jones v. State, 147 S.W.2d 508 

(Tex.CriLApp.1941) the Texas Court of Criminal Appeals declined 

to follow the former decisions, thus joining the ranks of the 

majority. After tracing the history of what they considered to 

be an erroneous decision, the court explained its reasons for a 

change of- course: 

"Again this court has consistently held that a 

witness may be examined as to his previous conviction 

for the purpose of enlightening the jury as to his 

credibility and this though the Governor had 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 existence of 

a fact, save and except in the application of the enhancement statute. Our holding herein will be consistent with the holding on the ~same subject 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 fbllowing year, Square v. State, 167 S.W.2d 192 (Tex. 

Crim.App. 1942.) In overruling the motion for rehearing the court 

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

cited approvingly Jones 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 pardoning power of the executive has no effect 

whatsoever on the judgment or any portion of the 

~~&~;o~ior tf the date of the governor's pro- 

. . . (at P. 194.) 

In 30 AIB2d 893, the annotation concludes that a prior 

felony conviction may be used for impeachment even 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 impeaching evidkce 

h the court 

~fC~~~'wi~~~~~~'conviction, 

fourteen years before the trial, was too remote. 

In Handksmer v. 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 following a felony conviction. He had been 

sentenced to the penitentiary for 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 application for a 

Writ of Mandamus the court said: 

"The full pardon removed from petitioner the 

penalties and disabilities which attached in virtue 

of his conviction and restored to him his civil rights; 

but, as pointed out Ex 

Alabama 342, 10 so.2a 3 P 

arte Stephenson, supra (243 

, 'the pardon and restoration 

of his political and civil rights do not of themselves 

restore the petitioner to the office of sn attorney.' ' 

(at P. 550-551) 

To the same effect is the California case, Feinstein v. State'Bar, 

248 P.2d 3 (Cal.Sup. 1952) there the court said th t a 

does not reinvest the applicant with those essenti%sar~~i% 

of an attorney. 

From the foregoing therefore, it seems clear that a Governor's 

pardon does not wipe the slate clean so as to completely obliterate the conviction from the record. Considering then that the 

legal burdens of the conviction continue 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 termination of those 

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

burdens. Therefore, the pardon of the Governor has only the 

effect of a ~"termination of parole" within the language of 

Article 667-5F, supra. Therefore, the applicant will be required to wait a period of three years subsequent to the 

issuance of the pardon before he is eligible to make application for a permit. 

SUMMARY 

The application for a Wine and Beer Retailer's 

Permit by a person who was convicted of a felony on 

September 28, 1955, and sentenced to thirty years in 

the Texas Department of Corrections, and who was 

granted a full pardon by the Governor on May 26, 1970, 

may be considered after May 26, 1973. 

The pardon does not obliterate the conviction 

from the record for the purpose of administering the 

Texas Liquor Control Act. 

6 very truly, 

Prepared by Max P. Flusche 

Assistant Attorney 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 

Executive Assistant 

NOLA WHITE 

Pirst Assistant 

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