April 18, 1975

The Honorable Dolph Briscoe Governor ofTexas State Capitol Building Austin, Texas 78711
Dear Governor Briscoe: Opinion No. H- 587 Re: Difference between

“pardon” and “restoration of citizenship” under article 42.12, section 24. Code of Criminal Procedure. You request our opinion as to the distinction, ifany, between a “pardon” and “restoration to citizenship. I’ Article 42.12, section 24, Texas Code 

### of Criminal Procedure, provides as 

### follows:

Whenever any prisoner serving an indeterminate sentence, as provided by law, shall have served for twelve months onparole in a manner acceptable to the Board, it shall 

### review the prisoner’s record and make a determination whether to recommend to the Governor that the,prisoner bepardoned and finally discharged from the sentence under which he is serving. When any prisoner who has been paroled has complied ~5th the rules and conditions governing his parole until the end ofthe term towhich he was sentenced, and without a revocation ofhis parole, the Board BhalI report such fact tothe Governor prior to the issuance of the final order of discharge, together with its recommendations as towhether the prisoner should be restored to citizenship. (Emphasis added). Inyour letter, you indicate that the Texas Board of Pardons and Paroles forwards cases toyou with the recommendation that some individuals be granted a “full pardon” and that some be restored to “full rights of citizenship only. ” You ask, “what rights are restored by the grant ofa ‘full pardon’ and what rights are restored by a ‘restoration of full rights of citizenship’ only. ”

p. 2619The Honorable Dolph Briscoe, page 2 (H-587)

Conviction for a felony in Texas carries with it, besides ajudicially determined punishment, a deprivation of certain rights of citizenship. Tex. Const. art. 16, sec. 2; Election Code, arts. 1.05 (holding office) and 5.01 (voting): art. 2133, V. 1. C.S. (serving ontrial juries): Code Crim. Proc., arts. 19.08, 35.12, 35.16 (serving on grand and petit juries); Additionally, conviction ofa felony (and in some cases, a certain type ofmisdemeanor) bars entry into and continuance in a great number of businesses and professions. See e&, art. 311, V. T.C.S. (the practice of law): art. 581-14, V. T. C.S. (security dealer or salesman); and art. 845la. V. T. C.S. (cosmetology). The Governor has been granted the power to pardon convicted felons on the recommendation ofthe Board of Pardons and Paroles. Tex. Const. art. 4, sec. 11;Code Crim. Proc. art. 48.01. As early as 1881and as recently as 1973, Texas courts have attempted to describe the legal effects 

### ofa pardon. Rivers v. State, 10Tex.Crim. 177. 182 (1881). quoting section 762 of 1 Bishop Criminal Law (4th ea..), stated:

The effect ofa full pardon is to absolve the party from all the legal consequences ofhis crime and ofhis conviction, direct and collateral, including the punishment, whether ofimprisonment. pecuniary penalty, or whatever else the law has provided. But there are limitations tothe effect ofapardon. InJones v. State, 147S.W. 2d 508 (Tex. Crim. App. 1941), the court overruled its prior holdings and held that apardon does not negate the fact that a crime was committed and therefore, the prior pardoned conviction may be used for enhancement purposes. The court explained:

He [executive] can pardon, but, ‘as the very essence ofa pardon is forgiveness or remission ofpenalty, a pardon implies guilt; it does not obliterate the fact of the commission ofthe crime and the conviction therefor; it does notwash out the moral stain. As has been tersely said, “it involves forgiveness and not forgetfulness. ‘I’

. . .

p. 2620The Honorable Dolph Briscoe, page 3 (H-587)

In

### our state, as in the other states ofthe Union, the executive is not given appellate jurisdiction over the acts ofthejudicial branch ofthe government, and without which he can have nopower to destroy its judgments and decrees. He must take them as he finds them.

. . . The Governor can forgive the penalty, buthe has no power to direct that the courts shall forget either the crime or the conviction. The.pages written by the court’s decree are in the minutes still. In Logan v. State, 448 S.W. 2d 462, 464 (1970). the Court ofCriminal Appeals elucidated 

### its pronouncement inJones, by observing that a prior conviction could not be used to enhance where:

. . . the pardon was predicated upon a finding by tbe executive department.
. . that appellant was not guilty ofthe offense for which he was convicted

. . . (because) there would be no offense
. . . (however)
. . . . ’ [a] pardon for any other reason than the subsequent proof ofinnocence does not obliterate the defendant’s previous transgressions . . .’ The word “pardon!’ when not otherwise qualified by “conditional” or
“partial” and the term “full pardon” are one and the same so far as their legal effect is concerned, unless the pardon is granted because .thkprisoner is not guilty ofthe offense for which he was convicted. Carr v. State; I9 Tex. Crim. 635, at 663 (1885). A pardon restores all civil rights lost because ofthe pardoned conviction --suffrage, holding office, and competency as ajuror. Easterwood v. State, 31S.W. 294 (Grim. App. 1895) held that apardoned felon may sit as ajuro: and vote in the elections. Even though there are no cases whicb~specifically hold that apardon by the Governor restores the right to~hold office, the 1967 amendment to article 1.05 ofthe Election Code couches its-rest.riction against felons in terms of voting disabilities, and therefore those cases holding that a p. 2621The Honorable Dolph Briscoe, page 4 (H-587)

felon is restored his voting rights by a “full pardon” apparently are also authority for the proposition that a felon is restored his right to seek and hold office. Attorney General Opinion M-1184 (1972) held thatunder article 780 ofthe 1925 Code of Criminal Procedure and section 7of article 42.12 of the 1965 Code of Criminal Procedure, a convicted felon may have his rights of citizenship restored. Once these rights are restored, the person is eligible tohold 

### office. Article 6252-25, V. T. C.S., provides for compensation to persons 

### wrongfully convicted who secure a pardon, andwho prove by apreponderance of the evidence that they are not guilty of the crime for which they 

### were convicted. 

### A restoration ofcivil rights alone may not satisfy the terms of said 

### article. A pardon or restoration of citizenship will not automatically 

### restore collateral privllegee associated with a license to engage in certain businesses or professions, but either may open the door to reinstatement. 

### Hankamer v. Terndin, 187S.W. 2d 549 (Tex. Sup. 1945). Restoration of civil rights has not been defined in 

### case law and appears only in section 24 

### ofarticle 42.12, as stated above. See Code Grim. Proc. 

### art. 48.01, et seq. Section 24 applies only to prisoneyon 

### parole orwho have completed their paroles. By the terms of the statute, 

### for those prisoners who are still 

### serving onparole, the Board may “recommend to the Governor that the prisoner be pardoned;” 

### for those prisoners who have completed their parole, the Board may recommend that the prisoner be “restored to citizenship. ” However, 

### theGovernor has the constitutional power to grant apardon to aparoled prisoner who has completed his parole, despite the language in section 24. Tex.Const. art. 4, section 11; Code Crim. Proc., art. 48.01; State ex rel Smith v. Blackwell, 500 S.W. 2d 97 (Crim. App. 1973); Hunnicutt v. State, 18Tex.Crim. 498 (1885). There is noindication in section 24 ofa difference between the recommendation ofpardon 

### or restoration ofcitizenship other than the status ofthe paroled prisoner towhich they apply. Inview ofthe absence ofexpress language in the pardon so stating, Texas does not ascribe a sense ofmoral forgiveness to apardon; therefore, apardon and 

### restoration of citizenship reinstate the 

### same rights under section 24 ofarticle 42.12 of the Code of Criminal Procedure. See, Logan v. State, supra: Jones v* - supra. State, p. 2622The Honorable Dolph Briscoe, page 5 (H-587)

SUMMARY For tbe purposes ofarticle 42.12, section 24, Code of Criminal Procedure, there is no difference in the rights reinstated by apardon or a restoration to citizenship. A restoration to citizenship might not satisfy the terms ofarticle 6252-25, V. T. C.S., which require a pardon and a proof ofinnocence for an award of compensation to awrongfully convicted person. Very truly yours,

Attorney General of Texas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

p. 2623