TJIXE L~TNBRNEY GICNETERAL 

OFTEXAS 

Honorable Homer A. Davis Opinion No. M-1184 

County Attorney 

P. 0. Box 1110 Re: Whether one who was convicted 

316 Denrock Avenue of a felony, given a suspended 

Dalhart, Texas 79022 sentence, and had the cause 

against him later dismissed 

is eligible to be certified 

as a political party nominee 

in a general election, pursuant 

to Article 700 of the 1925 

Texas Code of Criminal ProceDear Mr. Davis: dure. 

your letter requesting the opinion of this office concerning the referenced matter states, in part, as follows: 

"We have a candidate for County Commissioner, 

a Mr. Malcolm Bryant, who has previously been convicted of a felony. 

"I have enclosed herewith, for your consideration, the Judgment Plea of Guilty Before Court, 

dated June 9, 1961; Sentence Suspended, dated June 

9, 1961; Recognizance on Suspension of Sentence; 

Motion for New Trial and Dismissal of the Cause, 

dated April 14, 1964; together with the Order Granting New Trial and Dismissing Cause, dated April 14, 

1964, and ask that you please return them to me. 

"The Election Code provides that, at the 

General Election, the Judge of the County Court 

shall certify those elected officers that are eligible to serve. My question is, assuming that Nr. 

Malcolm.Bryant should be elected County Commissioner, 

would he be qualified to serve? . . . ." 

Section 1 of Article VI of the Constitution of Texas 

reads as follows: 

"The following classes of persons shall not 

be allowed to vote in this State, to wit: 

-5777- 
Hon. Homer A. Davis, page 2 (M-1184) 

"First: Persons under twenty-one (21) years 

of age. 

"Second: Idiots and lunatics. 

"Third: All paupers supported by any county. 

"Fourth: All persons convicted of any felony, 

subject to such exceptions as the Legislature 

may make." (Hmphasis added.) 

Section 2 of Article XVI of the Constitution of Texas 

reads, in pertinent part, as follows: 

"Laws shall be made to exclude from office, 

serving on juries, and from the right of suffrage, 

those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high 

crimes. . . ." 

Article 1.05, Texas Election Code, provides that: 

"No person shall be eligible to be a candidate 

for, or to be elected or appointed to, any public 

office in this state unless he is a citizen of the 

United States eligible to hold such office under 

the Constitution and laws of this state and is under 

none of the disabilities for voting which are stated 

in Article VI, Section 1 of the Constitutioq of Texas 

II . . . . 

Article 5.01, Texas Election Code, provides that: 

"The following classes of persons shall not be 

allowed to vote in this state: 

II . . . . 

"4 . All persons convicted of any felony except 

those restored to full citizenship and right of 

suffrage or pardoned." 

The materials submitted with your letter conclusively 

show that the individual involved in your request was convicted 

of the offense of assault with intent to rape, a felony. The 

materials also show that he was given a two year suspended 

sentence, as allowed by Article 780 of the 1925 Code of Criminal 

Procedure. After fully serving his sentence, this individual 

then moved for a new trial and obtained an order dismissing the 

charge against him, as also provided for in Article 780. 

-577% 
Hon. Homer A. Davis, page 3 (M-1184) 

Former Article 780 (now codified as Section 7 of Article 

42.12 of the 1965 Texas Code of Criminal Procedure) provided as 

follows: 

"In any case of suspended sentence, at any time 

after the expiration of the time assessed as punishment by the jury, the defendant may make his written 

sworn motion for a new trial and dismissal of such 

case, stating therein that since such former trial 

and conviction he has not been convicted of any felony, 

which motion shall be heard by the court during the 

first term time after same is filed. If it appears 

to the court, upon such hearing, that the defendant 

has not been convicted of any other felony, the court 

shall enter an order reciting the fact, and shall 

grant the defendant a new trial and shall then dismiss said cause. After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be 

shown or insuired into for any purpose except rn 

cases where the defendant has been aaain indicted 

for a felony and invokes the benefit-of this law." 

(Emphasis added.) 

It is apposite to note that Section 7 of Article 42.12, 

Texas Code of Criminal Procedure, the successor to Article 780, 

provides that a defendant "shall thereafter be released from all 

penalties and disabilities resulting from the offense orcrime 

of which he has been convicted or to which he has pleaded guilty." 

We now turn to the question of whether the underscored 

portion of Article 780, supra, constitutes an exception to the 

prohibition of Section 1 of Article VI of the Constitution of 

Texas. 

It is axiomatic that constitutional and statutorv 

provisions which restrict the right to hold public office should 

be strictly construed against ineligibility. Hall v. Baum, 452 

S.W.2d 699, 702 (Tex.Sup. 1970); Willis v. Potts, 377 S.W.2d 622, 

623 (Tex.Sup. 1964). 

Attorney General's Opinion No. O-2698 (1940) held that 

a person who had been convicted of burglary, and was given a twoyear suspended sentence, could not hold the office of justice of 

the peace. However, at the time the individual in that Opinion 

sought elective office, his suspended sentence was still in force 

and effect; such is not the case with the individual involved in 

' -5779- 
Hon. Homer A. Davis, page 4 (M-1184) 

the instant request. See, also, Attorney General's Opinion No. 

0-4121 (1941). 

Attorney General's Opinion No. V-278 (1947) held that 

an individual was ineligible to serve as a school district trustee 

after he had been convicted of a felony and served his sentence, 

but had not had the disabilities attendant to his conviction removed. 

Attorney General's Opinion No. M-640 (1970) construed 

Section 7 of Article 42.12 and held that when a court dismissed 

the charge against a person who had successfully completed his 

probated sentence such person was thereby released from all civil 

penalties and disabilities incurred by his conviction. Said 

Opinion also specifically held that such a person might serve on 

a jury and vote, but made no mention of the question of holding 

office. 

Attorney General's Opinion No. M-795 (1971)'held that 

once the indictment against a defendant was dismissed, pursuant 1 

to Section 7 of Article 42.12, a voter registration certificate 

could be issued to him. 

In view of the foregoing, we hold that the Legislature, 

in enacting Article 780 of the 1925 Code of Criminal Procedure, 

and Section 7 of Article 42.12 of the 1965 Code of Criminal 

Procedure, established a constitutionally sanctioned exception 

to the proscription of a convicted felon's holding office as provided for in Section 1 of Article VI of the Constitution of Texas. 

The facts related in your letter clearly show that the 

felony charge against the individual in question has been.dropped, 

pursuant to Article 780, and that his suspended sentence is no 

longer in force. 

You are therefore advised that the county judge may 

legally certify Mr. Malcolm Bryant as a candidate for county 

commissioner in the general election to be held on November 7, 

1972. 

SUMMARY 

Article 780 of the 1925 Code of Criminal Procedure and Section 7 of Article 42.12 of the 1965 

Texas Code of Criminal Procedure established a procedure whereby the disabilities attendant to a felony 

-5780- 
Hon. Homer A. Davis, page 5 (M-1184) 

conviction may later be removed. Pursuant to 

said statutes, one convicted of a felony may later 

have his rights of citizenship restored. Once 

these rights are restored, the person is eligible 

to hold office. 

truly yours, 

C. MARTIN 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

.' 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Roger Tyler 

Jay Floyd 

Gordon Cass 

John Banks 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

/ ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-5781-