April 18, 1975 

The Honorable Dolph Briscoe 

Governor of Texas 

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, if any, 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 on parole 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 of the term to which he was 

sentenced, and without a revocation of his parole, 

the Board BhalI report such fact to the Governor prior 

to the issuance of the final order of discharge, together 

with its recommendations as to whether the prisoner 

should be restored to citizenship. (Emphasis added). 

In your letter, you indicate that the Texas Board of Pardons and Paroles 

forwards cases to you 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 of a ‘full pardon’ and 

what rights are restored by a ‘restoration of full rights of citizenship’ only. ” 

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

Conviction for a felony in Texas carries with it, besides a judicially 

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 on trial juries): Code Crim. Proc., 

arts. 19.08, 35.12, 35.16 (serving on grand and petit juries); Additionally, 

conviction of a felony (and in some cases, a certain type of misdemeanor) 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 of the Board of Pardons and Paroles. Tex. Const. 

art. 4, sec. 11; Code Crim. Proc. art. 48.01. As early as 1881 and as 

recently as 1973, Texas courts have attempted to describe the legal effects 

of a pardon. Rivers v. State, 10 Tex.Crim. 177. 182 (1881). quoting section 

762 of 1 Bishop Criminal Law (4th ea..), stated: 

The effect of a full pardon is to absolve the party 

from all the legal consequences of his crime and 

of his conviction, direct and collateral, including 

the punishment, whether of imprisonment. pecuniary penalty, or whatever else the law has provided. 

But there are limitations to the effect of a pardon. In Jones v. State, 

147 S. W. 2d 508 (Tex. Crim. App. 1941), the court overruled its prior holdings 

and held that a pardon 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 

of a pardon is forgiveness or remission of penalty, 

a pardon implies guilt; it does not obliterate the fact 

of the commission of the crime and the conviction 

therefor; it does not wash out the moral stain. As 

has been tersely said, “it involves forgiveness and 

not forgetfulness. ‘I ’ 

. . . 

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

In our state, as in the other states of the Union, 

the executive is not given appellate jurisdiction 

over the acts of the judicial branch of the government, and without which he can have no power to 

destroy its judgments and decrees. He must take 

them as he finds them. 

. . . 

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. 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 of Criminal 

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 of the offense for which he was convicted 

. . . (because) there would be no offense . . . 

(however) . . . . 

’ [a] pardon for any other reason than 

the subsequent proof of innocence 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 .thk prisoner 

is not guilty of the offense for which he was convicted. Carr v. State; I9 

Tex. Crim. 635, at 663 (1885). 

A pardon restores all civil rights lost because of the pardoned conviction 

--suffrage, holding office, and competency as a juror. Easterwood v. State, 

31 S. W. 294 (Grim. App. 1895) held that a pardoned felon may sit as a juro: 

and vote in the elections. Even though there are no cases whicb~ specifically 

hold that a pardon by the Governor restores the right to ~hold office, the 1967 

amendment to article 1.05 of the Election Code couches its-rest.riction against 

felons in terms of voting disabilities, and therefore those cases holding that a 

p. 2621 
The 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 that under 

article 780 of the 1925 Code of Criminal Procedure and section 7 of 

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 to hold office. 

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

wrongfully convicted who secure a pardon, and who prove by a preponderance 

of the evidence that they are not guilty of the crime for which they were convicted. A restoration of civil 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, 187 S. W. 2d 549 (Tex. Sup. 1945). 

Restoration of civil rights has not been defined in case law and appears 

only in section 24 of article 42.12, as stated above. See Code Grim. Proc. 

art. 48.01, et seq. Section 24 applies only to prisoneyon parole or who 

have completed their paroles. By the terms of the statute, for those prisoners 

who are still serving on parole, 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, the Governor has the constitutional power to grant a pardon to 

a paroled 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, 18 Tex.Crim. 498 (1885). 

There is no indication in section 24 of a difference between the recommendation 

of pardon or restoration of citizenship other than the status of the paroled 

prisoner to which they apply. 

In view of the absence of express language in the pardon so stating, Texas does 

not ascribe a sense of moral forgiveness to a pardon; therefore, a pardon and 

restoration of citizenship reinstate the same rights under section 24 of article 

42.12 of the Code of Criminal Procedure. See, Logan v. State, supra: Jones v* 

- 

State, supra. 

p. 2622 
The Honorable Dolph Briscoe, page 5 (H-587) 

SUMMARY 

For tbe purposes of article 42.12, section 24, 

Code of Criminal Procedure, there is no difference 

in the rights reinstated by a pardon or a restoration 

to citizenship. 

A restoration to citizenship might not satisfy 

the terms of article 6252-25, V. T. C. S., which 

require a pardon and a proof of innocence for an 

award of compensation to a wrongfully convicted 

person. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2623