MARK WHITE 

Attorney General 

The Attorney General of Texas 

hmber 12, 1980 

j 

Honorable Robert C. Koehl 

Atascom County Attorney 

Jourdanton, Texas 78026 

Opinion No. MV-~270 

Re: whether a uonvicted felon 

wholxu3receivedafullpardonmay 

serve as a pmue offiuer 

Dear Mr. Koehl: 

You have asked whether a convicted felt w.b has’been grented a full 

and.mconditional pardon ty the governor of Texas is eligible to be certified 

as a peace off&r by the Texas Commission on Law Enforcement Officer 

Standards and JM~caticm. Article 44l2(29aa), V.T.C.S., ptuvides in section 

8A(rd that %.I 0 person who has heen convicted of a felony under the laws of 

this state, another state, or the United States may be certified ty the 

Commission as qualified to be a peace officer.. . .” Therefore, the answer 

to you~inquiry is dependent upon the legal effect of a full and tmconditional 

pardon granted by the governor pursuant to Micle IV, section 11 of the Texas 

Constitution nnd article 48&l of the Texas Code of Criminal Procedure. 

Thelegaleffectofapardoslhasbeen~bJrboththeS~~me 

Court of Texas md the Texas Court of Criminal Appeals, with ea@~ UXM 

reach@ the mme amelusion. In deter- that a prior cdnlictian far 

whfch the defendant. had received a full pnrdon amid be ued fa 

athanuement of a ssMeqwnt offense, the .cavt of Crhniml Appeals 

ncogn~edthepowarofthegovecnortogmntapardana 

bu~kstheverye9senceofapardoni9fagiwmew~or 

remissiun .of penalty, a p&don impli~ guilt) it doea 

not ubliterfite the feet of the commi8sSab of the 

crime end the convlcticn therefor$ it does mt wash 

outthemoca1stnin. Ashnsbeant+%elyEeaM,“# 

involves forgiveness end not forgetfulmss.“1 

Jones v. State, l47 S.W. ‘2d 508, 510 flex. Grim. App. l94& uitillg 46 C.J. 

tarduns S32, at ll9S; Untted Statea v. Swift, 188 P. UM2 @.IlL l9lQ Sbenek 

v. 272 S.W. 141 CT Cim A l&i1 “[Tlhe uonviution was not 

obliterated by the pmdoi~%utr~;na~ a feet in the peat hbtory of the 

defendant.” 147 S.W. 2d at 510. 

p. 857 
Honorable Robert C. Koehl - Pege Two (M-270) 

The case of Jones v. State, s, was cited with approval by the Supreme Courts 

of Texas in Hankamer v. Temphn, 167 S.W. 2d 549 (Tex. 1945), which determined that a 

disbarred attorney who had received a full pardon and restoration of citizenship was 

not entitled to reinstatement of his law license, which had been revoked because of his 

conviction for a felony. The supreme court observed that “the right to practice law is 

not a personal rigi& but a franchise, or privilege.” 187 S.W. 2d at 551. 

The Court of Criminal Appeals has likewise determindd that a full pardon did not 

p=clude the admission of evidence of the pardoned offense to prove possession of 

burglary took by a convicted felon. J&an v. State, 449 S-W. 2d 462 (Ten Crim. App. 

1969l The court Fe-affirmed its decision in Jones v. State, s ra and quoted from an 

opinion by Judge Gol&zrg in Gurleski v. United States, 405 +%I 253 (5th Ckl968) 

that “(al pardon for any other reason than s&sequent proof of innocence &es no; 

obliterate the defendant’s previous transgressions.” 448 S.W. 2d at 464. 

te Smith 548 S.W. 2d 410 Rex. Crim. App. l977), a,prior conviction for 

whihd been pardoned, for reasons other thsn &sequent pmof of 

innoc&ce, was held to be admissible to deny bail to sn habitual offender. Likewise, in 

the absence of a showing that a psrdon had been granted for stisequent~proof of 

innocence, evidence of the pardoned offense was held to be admissible to prove 

pamession of e firearm by a convicted felon in Rune v. State, 556 S.W. 26 809 (Tex. 

Crim. App. 1977). A similar decision was reached in Watkins v; State, 572 S.W. 2d 339 

(Tex. Grim. App. l978), wherein the court held that a pardon grahted for any reason 

other thsn s&sequent pmof of hnmcence did not preclude use of the pardoned offense 

in bsrrSng the defendant% right to receive a probated sentence in e S&sequent criminal 

proCediIg. 

The United States Court of Appeals for the Fifth Circuit has adopted the 

rationale of Jones scpra, in hold& that e psrdon granted fm any reason other 

then s&sequent, proof of innocence would not be effective to preclude use of the 

pardoned offense for ‘enhancement of a s&sequent offense. ‘Donald v. Jones= 445 P. 2d 

601 (5th Cir.), cert. denied, 404 U.S. 992 (l97l). The Fifth Circuit has also held that 

evidence of such a pardoned off- would be admissible for impeachment purposes et 

the defendant% trial for a s&sequent offense. Gurleski v. United States, 405 P. 2d 253 

(5th Cir. l968), cert. denied 395 U.S. 961, cehearh denied s& nom. Smith v. United 

~S66-U.S.869 

‘III summery, the foregoiw de&ions establish that a prior conviction for which 

the defendant hss received a full pardon, absent a showing that such pardon was 

granted for s&sequent proof of innocence, may be utilized for purpcees ‘of (u 

enhancement, (2) impeachment, (3) denial of bail to an habitual offender, (4) denial of 

probation, (5) denial of a license to practice law, (6) provirg possession of a firearm by 

a felon and (7) pmviw possession of burglary tools by a felon. 

‘It is generally recognized that a pardon is effective to restore certain rights of 

cItizenship, e. ., suffrage, jury service, and hold@ public office. See Easterwood v. 

m, 31 a 6 294 (Tex. Crim. App. 1695); Election Code art. L05. This offica has 

p. 658 
Honorable Robert C. Koehl - Page Three (Mb’-270) 

previously determined that there is no difference between the civil rights reinstated by 

a “pardon 11 and a “restoration of citizenship” under article 42.12, section 24 of the 

Texas Code of Criminal Procedure. See Attorney General Opinion H-587 (1975). 

Although section 24 of article 42.12 has been stisequently amended, and the reference 

to “restoration of citizenship” has been deleted, we believe the legal effect of a pardon 

to be synonymous with a restoration of rights of citizenship. Therefore, it must be 

determined whether certification as a peace officer i# a personal right embodied in 

“rights of citizenship” which are effectively restored to a convicted felon by the 

granting of a full and unconditional pardon. 

As the Supreme Court of Texas observed in Hankamer v. Templin, s_rpra, the 

right to practice law is not a personal right; rather, it IS a franchise OF pnvilege 

conferred b the state only for merit. The right to practice law in this state is 

attested by a law license issued by the Supreme Court of Texas and is protected by 

registration. An individual may not legally practice law without takiw the statutory 

oath of office and becomirg an officer of the court, stiject to its disc’ line, liable for 

contempt for violation of duty, and stiject to suspension or removal fp or misconduct. 

187 S.W. 2d at 55. It cannot be said that a license to practice law is a right of 

citizenship open to all regardless of qualification; rather, a law license is in the nature 

of e franchise cr privilege conferred by the state cftly for merit and slaject to 

revocation or denial for just cause. We believe that certification as a peace officer is, 

;;,“,“,” license, not a right but a franchise or privilege conferred by tha state only 

We iwve recently determined that denial of certification. as a peace officer 

because of a prior conviction resulting in e probated sentence did not constitute a 

“penalty” or vdisability” from which the convicted felon could be released lpon 

discharge from probation pursuant to article 42X, section 7 of the Texas Code of 

Criminal Procedure. See Attorney General Opinion MW-146 (198OL We there observed 

that the diiciplin~ o~censees is for the protection of the general public and not for 

the purpose of punishitg any licensee. See e. 

liGidb& 

+ 

Cope&id v. Department of Alcoholic 

Bever e Ccdro 50 Cal Rptr. 452 (CaL t. App. 1966); see alao Meyer v. Board of 

xa ners, 206 P. 2d 1085 (CaL 1949); In re Philliwx 2d 344 (CaL l94ti 

Cooper 48xW. 2d 129 (Tex. Civ. App. - El Pa.& 

1972, writ rePd n.r.e.1. 

Accordi@y, we do not construe certification as a peace off&r to be a right of 

. citizenship subject to restoration after conviction by a pardon. It is therefore our 

opinion that e full and unconditional pardon, unless granted for stiaaquent proof of 

innocence, would not entitle a convicted felon to be certified as a peace officer, in 

view of the prohibition of section 8Afa) of article 4413(29aaL 

SUMMARY 

.A pardon granted for any reason other than s&sequent proof 

of innocence would not entitle a convicted felon to be certified 

as a peace officer. 

p. 859 
Honorable Robert C. Kohl - Page Four w-270) 

Attorney General of Texas 

JOHN W. FAINTER, JR. .c 

First Assistant Attorney General 

RICHARD R GRAY III 

Executive Assistant Attorney General 

APPROVED: 

OPINlON COMMIX’TRE 

Susan L. Garrison, Actillg Chairmen 

Jon Bible 

GereId C. Cerruth 

Rick Gilpin 

p. 860 

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