Board of Pardons and Paroles

Austin, Texas Attention: Mr. Abner L. Lewis
Dear Sir: OpinionNo. o-5662 Re: Constitution,Article IV, Section 11, vesting inGovernor power to commutepunishment and grant pardons after conviction, on the written 8igned 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 'afterconviction.' Now, is the judgmentof conviction sufficient for the Board of Pardons and Paroles to take juriscllctlon of the case even though it is suspended in accordancewith 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 sentencehas been suspended.

. . 0 .?

“(3) OurAppellate Courts have held that one whose conviction,hasbeen had and sentence suspended, IS not precludedby 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 otherpurpose............?Board of Pardons and Paroles,page 2 0-5662

I! 11 D

. . . . Section 11,Article IV, State Constitution, inpart, 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;

. . ." (Underscoringours) The main question to be determined is: Does a judgment of conviction, accompaniedby a suspension of the sentence, comewithin the term "afterconviction" as used in the Constitution?
It seemswell settled that a judgmentaccompanied by a suspension of the sentence 1sa conviction. State, 240 S.W. 554 and Hill v. In Callowayv. State, 243 S.X. 982, our-.Court of CriminalAppeals held, "thata judgment of guilty in a felony case accompaniedby 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 sectionsare now embraced inArticles 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 ofArticle IV of our Constitution,was construed to mean simply the determination of guilt by the jury,and does not embrace the sentence. InGoss v. State, 298 S.W. 585, Judge Marrow, speaking for the Court of CriminalAppeals of Texas, said: "While in some sense the term 'conviction'applies to a final judgmentof guilty, that term as used in our Constitution,means a verdict of guilty.' The same holding is found inDuke v. State, 291 S.W. 539."

In 'Wordsand Phrases, PermanentEdition, "Volume 9, many cases are cited, practically from all our jurisdictions, most of which hold that the word "conviction"in itspopular sense,means no more than a verdict of guilty and in some of the cases, it is held that a plea of guilty, followedby 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, iswell 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 criminalprosecution 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 appropriateword to denote the action of the courtbefore 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 constitutionalprovisions is a stage of the proceedingswhich precedes the judgment or sentence of the court,which later servesmerely 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, sentenceby the court is not essential to the completion of a 'conviction; and is not a necessaryprecedent to the exercise of the pardoningpower. . . . .'I
In the Anderson case reported in 92 PacificReporter (2d) 1020, there isa lengthydiscussion of the term “conviction” in such constitutionalprovislon as involved in the instant case. Article VII of California's Constitutionprovides that, "TheGovernor shall have the power to grant reprieves, pardons, and commutations of sentence,after convictions, ...n The California Court in construing the term, "Afterconviction," 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, isa pardon granted 'afterconviction'wlthin the meaning of the above-quotedprovision. This precise queatiem has nwer been passed upon by the appellate courts of this state. It has, however, received considerationby the courts of other states. Most state constitutions, in an attempt to prohibit the abuses exlstent at common law underwhich the crown exercised the power of pardon at any time, contain a provision similar to the one above quoted limiting the pardoning power to situationswhere 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 constitutionalprovisions shouldnot be given itspopular meaning,but should, be interpretedIn a strict technical legal sense. So interpretedthese courts have held that the term denotes the final judgment of the court and that a verdict of guilty without the impositionof sentence isnot, 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 reasonwhy the word 'conviction'in article VII, supra, shouldnot be accorded itsnormal popularmeaning. The rule iswell settled, of course, that in interpretingwords found in a statute or constituion, suchwords as have both a popular and a technicalmeaning shouldbe accorded their popularmeeting, 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 inarticleVII, supra, they have in several cases, interpretedthe term as used In several statutes. In all but one ease, hereaftermentioned, it has been held that the term tconviction'should be interpretedas meaning the verdict of guilty, and that sentenceand judgment are not necessary to constitute a conviction....... II

. . . . . "Forthe foregoingreasonswe conclude that under the provisions of articleVII of the Constitution the governormay, 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 legalmeaning, namely, that the term refers to the verdict ofguilty 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 jurisdictionto recommend a pardon after con-. .

Board of Pardons and Paroles,page 5 0-5662

viction accompaniedby a suspension of the sentence. We there fore answer your first and secondquestions in the affirmative.

In answer to your third question you are advised that a judgment of convictionaccompanied by a suspension of the sentence forfeits the right to serve on a jury. This conclusion is supportedby 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 Committeeby s/BWB Chairman