Board of Pardons and Paroles 

Austin, Texas 

Attention: Mr. Abner L. Lewis 

Dear Sir: Opinion No. o-5662 

Re: Constitution, Article IV, Section 

11, vesting in Governor power to 

commute punishment and grant pardons 

after conviction, on the written 

8 igned recommendat ion of the Board 

of Pardons and Paroles; the Governor, 

on the recommendation of the Board 

has the power to grant pardon 

while the convicted's sentence is 

suspended; "conviction" as used 

means plea or verdict of gulltg. 

Your request for an opinion on the above captioned 

subject has been received and carefully considered. We quote 

from your letter, dated October 6, 1943, to-wit: 

,, . . . . 

"(1) The recent amendment to the Constitution of Texas prescribes that pardons and reprieves 

may be granted 'after conviction.' Now, is the 

judgment of conviction sufficient for the Board of 

Pardons and Paroles to take juriscllctlon of the case 

even though it is suspended in accordance with the 

statute? 

"(2) IS it permissible, under said constltutional amendment, for the Board of Pardons ana 

Paroles to recommend this form of clemency even 

though the sentence has been suspended. . . 0 .? 

“(3) Our Appellate Courts have held that one 

whose conviction,has been had and sentence suspended, IS not precluded by reason thereof, from testifying in the courts of record in this state. There 

fore, does the suspension of said sentence of conviction forfeit the right of citizenship for any 

other purpose............? 
Board of Pardons and Paroles, page 2 0 -5662 

I! 11 

D . . . . 

Section 11, Article IV, State Constitution, in part, 

reads as follows: 

11 . , . . In all criminal cases, except treason 

and impeachment, the Governor shall have power, 

after convlctlon, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves 

and commutations of punishment and pardons; . . ." 

(Underscoring ours) 

The main question to be determined is: Does a judgment 

of conviction, accompanied by a suspension of the sentence, 

come within the term "after conviction" as used in the Constitution? 

It seems well settled that a judgment accompanied by 

a suspension of the sentence 1s a conviction. 

State, 240 S.W. 554 and Hill v. 

In Calloway v. 

State, 243 S.X. 982, our-.Court 

of Criminal Appeals held, "that a judgment of guilty in a 

felony case accompanied by a suspension of the sentence is a 

conviction of felony as that term is used in sections 1, 2, 3, 

and 5 of Chapter 7, Acts Regular Session of Thirty-Third Legislature." Said sections are now embraced in Articles 776, 

777, and 778, Vernon's C.C.P. 

In Snodgrass v. State, 150 S.U. 162, the word "conviction," as used in Section 11 of Article IV of our Constitution, was construed to mean simply the determination of 

guilt by the jury, and does not embrace the sentence. In Goss 

v. State, 298 S.W. 585, Judge Marrow, speaking for the Court 

of Criminal Appeals of Texas, said: "While in some sense the 

term 'conviction' applies to a final judgment of guilty, that 

term as used in our Constitution, means a verdict of guilty.' 

The same holding is found in Duke v. State, 291 S.W. 539." 

In 'Words and Phrases, Permanent Edition, "Volume 9, 

many cases are cited, practically from all our jurisdictions, 

most of which hold that the word "conviction" in its popular 

sense, means no more than a verdict of guilty and in some of 

the cases, it is held that a plea of guilty, followed by a 

suspension of sentence, amounts to a conviction. 

We think the meaning of "conviction," as used in Section 11, Article IV of the State Constitution, is well defined 

in Section 21, page 539, 20 R.C.L., by the following language: 

"The ordinary legal meaning of 'conviction,' 
. . 

Board of Pardons and Paroles, page 3 0 -5662 

when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or a verdict returned against him by a jury, which ascertains and 

publishes the fact of his guilt; while 'judgment' 

or 'sentence' is the appropriate word to denote the 

action of the court before which the trial is had, 

declaring the consequences to the convict of the fact 

thus ascertained. A conviction then within the mean-, 

ing of these constitutional provisions is a stage of 

the proceedings which precedes the judgment or sentence of the court, which later serves merely as a 

basis of an appeal or execution, and not to enlarge 

the verdict or aid in the determination of the guilt 

of the accused. That being so, sentence by the court 

is not essential to the completion of a 'conviction; 

and is not a necessary precedent to the exercise of the 

pardoning power. . . . .'I 

In the Anderson case reported in 92 Pacific Reporter 

(2d) 1020, there is a lengthy discussion of the term “convict ion” in such constitutional provislon as involved in the instant case. Article VII of California's Constitution provides 

that, "The Governor shall have the power to grant reprieves, 

pardons, and commutations of sentence, after convictions, ...n 

The California Court in construing the term, "After conviction," 

as used in the Constitution of that state had the following to 

say, to-wit: 

,f . . . . . 

"In the instant case, the problem presented 

IS whether an unconditional pardon granted after 

a verdict of guilty, but before sentence and judgment, is a pardon granted 'after conviction' wlthin the meaning of the above-quoted provision. This 

precise queatiem has nwer been passed upon by the 

appellate courts of this state. It has, however, 

received consideration by the courts of other states. 

Most state constitutions, in an attempt to prohibit 

the abuses exlstent at common law under which the 

crown exercised the power of pardon at any time, 

contain a provision similar to the one above quoted 

limiting the pardoning power to situations where 

there has been a 'conviction.1 In interpreting 

these provisions the majority of the states have 

held that the word 'conviction' so used must be 

given its ordinary legal meaning, namely, that the 

term refers to the verdict of guilty or confession 

of the defendant in open court and does not refer 

to the sentence or judgment. . . . 
Board of Pardons and Paroles, page 4 0 -5662 

” . . . A minority of the states hold that the 

term lconviction' in such constitutional provisions 

should not be given its popular meaning, but should, 

be interpreted In a strict technical legal sense. 

So interpreted these courts have held that the term 

denotes the final judgment of the court and that 

a verdict of guilty without the imposition of sentence is not, therefore, a conviction. Ex parte 

Campion, 79 Eeb. 364 112 N. W. 585,’ 

White, 28 okl. Cr. do, 230 P. 522; . . ...* 

Ex parte 

"The reasoning of the cases stating the majority rule seems to us to be sound. There would seem 

to be no reason why the word 'conviction' in article VII, supra, should not be accorded its normal 

popular meaning. The rule is well settled, of course, 

that in interpreting words found in a statute or 

constituion, such words as have both a popular and 

a technical meaning should be accorded their popular meeting, unless the nature of the subject indicates, or the context suggests, that the 

used in a technlcal sense. 23 Cal. Jur. % 

are 

7 9, 1 124. 

"Although, already stated, the courts of this 

state have never passed on the meaning of the term 

'conviction' as used in article VII, supra, they 

have in several cases, interpreted the term as 

used In several statutes. In all but one ease, 

hereafter mentioned, it has been held that the term 

tconviction' should be interpreted as meaning the 

verdict of guilty, and that sentence and judgment 

are not necessary to constitute a conviction....... 

II . . . . . 

"For the foregoing reasons we conclude that 

under the provisions of article VII of the Constitution the governor may, and in this case properly 

did, pardon after verdict of guilty and before sentence and judgment." 

In view of the decisions of our own state and of the 

majority of other states, holding that the word 'conviction" 

so used must be given its ordinary legal meaning, namely, that 

the term refers to the verdict of guilty or confession of the 

defendant in open court and does not refer to the sentence or 

judgment, we are constrained to hold that the Board of Pardons 

and Paroles has jurisdiction to recommend a pardon after con- 
. . 

Board of Pardons and Paroles, page 5 0 -5662 

viction accompanied by a suspension of the sentence. We there 

fore answer your first and second questions in the affirmative. 

In answer to your third question you are advised that 

a judgment of conviction accompanied by a suspension of the 

sentence forfeits the right to serve on a jury. This conclusion is supported by the case of Terrill v. State, 112 (26) 

S.W. 734. 

Yours very truly 

ATTORNXY GENERAL OF TEXAS 

By s/Jesse Owens 

Jesse Ow&m 

Assistant 

JO:db:wc 

APPROVED OCT 29, 1943 

s/R.W. Fairchild 

(Acting) ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee by s/BWB Chairman