MARK WHITE Attorney General 

# The Attorney General of 

# Texas
hmber 12, 1980 j

HonorableRobertC. Koehl Atascom County Attorney Jourdanton, Texas 78026 OpinionNo. MV-~270 Re: whether a uonvicted felon wholxu3receivedafullpardonmay serve asapmue offiuer Dear Mr.Koehl: Youhave asked whether a 

### convicted felt w.b has ’been grented afull and.mconditional pardonty the governor **of** Texas 

### iseligible tobecertified 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 insection 8A(rdthat %.I0personwhohasheenconvicted ofafelonyunderthelawsof this state, another state, or the United States may be certified ty the Commission as qualified to be a peace officer..

..” Therefore, the answer toyou~inquiry is dependent uponthelegal effect ofa**full** 

### andtmconditional pardongranted bythegovernor pursuant to Micle IV,section 11 oftheTexas Constitution nndarticle 48&l oftheTexas 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 doesmt wash outthemoca1stnin. Ashnsbeant+%elyEeaM,“# involves forgiveness endnotforgetfulmss.“ 1 Jones v. State, l47 S.W. 

### ‘2d 508, 510flex. Grim. **App.** 

### l94& uitillg 46C.J. tarduns S32, 

### at ll9S;Untted Statea v. Swift, 188P. 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.2dat 510.

p. 857Honorable 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, 167S.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received a full pardon and restoration of citizenship was not entitled to reinstatement of his law license, which had been revoked because of his conviction for a felony.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 apersonal rigi& but a franchise, or privilege.” 187S.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 inJones 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 410Rex. 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 inbsrrSng the defendant% right to receive aprobated sentence ine 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 as&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 

### ofburglarytoolsbyafelon.

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

previously determined that there isno difference between the civil rights reinstated by a “pardon 11and 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 ISa franchise OFpnvilege 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 or misconduct. fp 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 inthe nature of e franchise cr privilege conferred by the state cftly for merit and slaject to revocation or denial for just cause. Webelieve 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 Wethere 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); Inre 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 ofsection 8Afa) of article 4413(29aaL SUMMARY .Apardon granted for any reason other than s&sequent proof of innocence would not entitle a convicted felon to be certified as a peace officer.

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### Attorney General **of**

### Texas

.c JOHNW.FAINTER,

JR. First Assistant Attorney General RICHARDR GRAYIII Executive Assistant Attorney General

APPROVED: OPINlON

COMMIX’TRE SusanL. Garrison,ActillgChairmen JonBible GereIdC. Cerruth RickGilpin

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