i

.

%ZEl Y GJCNERAE

Texas Prison Board 711 West Alabama Street Houston, Texas 3ear Sirs: Attention: M??s* C. A. 'Teagle, OpinionNo, O-2359 - Secretary

Re: Are inmates of the Texas Drison Sgstern, after their release and the restoration of their citizenship eligible to take the examrnation for and become cosmetologists? This will acknowledgereceipt of your recent 1~etter inwhich you submit the question as statedabove.

Our statutesrelating to the practice or occupaticn of cosmetology ha7e been Incorporated inVernon's Anno,iated Crimina?~

Statutes as ArtLcle 734b, That Article provfdes that no personmay lawfully engage in the practice or pursue the occupation of a hairdresser oracosmetologistunless suchperson sbal.1

have firsi;cb,tained a certificate or registratiorl or license from the State Board ofRairdressers and Cosmetol,ogists. Section 19 of saidArtic1.e?34b relates to t-hesubject we are here called upon to interpret. We quote:

I'Sectlon

15. The saidBoard created 'bythis Aet shall have the power to revoke or suspend certificates provided in thisA&, when the registrant or licensee shall have been convfcted of havingviolated any of the provIsions of this law or shall have been conv:eted of a felony or shall have been convIcted of drunkenness or of any offense in either the State or Federal Court involvingthe illegaluse, sale or transportation of intoxicatingliquor or narcoticdrugs, and any person so charged shall have the right of trial by jury in the county or districtwhere such offense fs alleged to have been eommfttedbefore the revoeation or cancellation of such license shall become effective. "(a) The Board may refuse to grant a certi-Texas Prison Board, page 2 Q-2359

ficate to any personwho shall fail to make a grade of seventy-five (75) in all subjectsupon which they are examined, or to any person guilty of fraud in passing the examinationand obtaining a certlflcate of authority to operateunder the provisions of this Act at any time, or if suchperson shallbe found guilty of a felony, or gross Immoralityor unprofessional or dishonest conduct, or should suchperson become addicted to the use' of drugs, or the habitualuse of intoxicatingliquor to such an extent as to rend,er him or her unfit to practice in any G:? the occupationsclassified under thisAct, and the Board shall further have authority to refuse to issue a permit or to cancel a permit issued to any one advertisingby means of knowingly false and deceptive statementsand for their failure to dlsplag the certfflcatesas provided for in thisAct." (UNderscoringours) Under the provjaions of the foregoing statute,you are respectfully advised that onewho has been convicted of a felony may not legally qualFfg for a certlffcate or license as a hairdresser or cosmetologist,unless favoredwi,tha full and completepardon and restoration of citizenship.

As to the effect of such pardon as applied to the aituation ofwhich you 'Lnqulre, we quote the following excerpt from Texas Jurisprudence:

"A full or unconditional pardon operates to prevent all furtherpunishment for the offense for which it is given, to remove all penal consequences, and'diaabilities incident to the conviction,and to create in the pardoned offender a new credit and capacitywholly unaffected by hIa crime. ‘It; ‘releases the punishment and blots out the guilt so that, in the eye cf the law, the offender Ls as innocentas if he had never committed the @ffense.' It makes him, as has been said, a new man. D
. O
"Asa general rule a full pardon restores one who has been convicted of a felony to all of his civil rights, including those of suffrage and jury service. It also removes the felon'sdisqualification to testify in any other proceedingand makes him a competentwitness. To have thie effect it is essential that the pardon be a full and unconditional one. . . .' (31 Tex. Jur. Pardon, s 9, p. 1265, et seq.)L ”

Texas Prison Board, page 3 O-2359

In Easterwood v. State, 34 Tex. Cr. R. 400, 31 S.W. 294, it Is said:

"Disabilitiesarising out of and attaching to a conviction for felony In this state are removed by the absolute pardon. The provisions in the Constftution and the laws of this state, 1mposir-gdlsabtlities because of conviction,are not and cannot be l~imltations

upon the authority of theGovernor to pardon. It labeyond the‘power of the Legislature to so restrict the conseauences of the oardon. His power is supreme,and beyond the reach bf legislative limitations. When a full oardon takes effect, all disabilitiesdisaupear, and the grantee~~atanda as if he had never been convicted. A removal of the conviction necessarilyremoves the disabilitles,be cause they are but consequences of the conviction. This would thereforerestore the party to his-right of suffrage,and his competency as a juror. The authorities are clear upon these questions,as we understand them." (Emphasisours.)
In the case of Scott v. State, 6 Tex. Clv. App. 343, 25 S. W. 337,which was an action of disbarmentbrought against anattorney under a statutewhich provided that onewho had license to practice law and was convicted of a felony, should have his name stricken from the roll of attorneys upon proof being made in court of such fact, the defendant produced a pardon for the offense of which he had been convicted. The pardonwas urged to the trial courtwhen proofwas offered of his convlctlon, and objectionsmade to such evidencebeing offered by the State.. The trPa1 court overruledScott and admitted the evidence,but the Court of Civil Appeals, through Judge Stephens, said:

"Weare of opinion that after he received an unconditionalpardon the record of the felony conviction could no longer be used as a basis for the proceeding provided for inArticle 226. This record, when offered in evidence,was met with an unconditlonal pardon, and could not, therefore,properlybe said to afford 'proofof a conviction of any felony.'HavIng been'thus canceled, all its force as a felony convictionwas taken away. A pardon falling short of this would not be a pardon, according to the judicTa1 constructlonwhich that act of executivegrace has re-' ceived. Ex parte Garland, 4Wall. 344, 18 L. Ed. 366; Knote v. 0. S., 95 U. S. 149,,24 L. Ed. 442, and cases. there cited; Young v. Young, 61 Tex. 191."Texas Prison Board, page'4 O-2359

The judgmentwas reversedand rendered in favor of Scott; upon the ground that his pardonwiped out the legal consequences of his conviction.

In the,Case of Sanders v. 1~S. W. (2d) 901, State, 108 Tex. Cr. R. 467, appellant had~

been the recipient of a suspended sentence for one felony and during the period of the suspension',

he was finally convicted In another felony case; The Statessought to impose sentence on the old case, but was met with an unconditionalpardon granted to cover the.most recent one. The trial judgerefused.to boncede this as a bar', but the Court of-'Criminal Appeals said~bgthe full pardon of a~ppellantin the last conviction the final judgmentwas w~ipedout "to getherwith all itsdependent consequences ' and that 'thebasis and foundation of the right of the s&e to have him sentencedwas ent?relggone."

The judgmentagainst Sanders was reversed, and the cause ordereddismissed.

We quote from the case of United States v. Athena Armory, 35 Ga. 344, 24 Feds.Cas. 878, 884:

"A pardon is an act of mercy flowing from the fountain of bounty and grace. Its effect,when it is a full pardon, is to-obliterate every stainwhich the law attached to the offender; to place himwhere he stoodbefore he committed'thepardoned offense, and to free him from the penaltiesand forfeitures to which the law had subjected his personal property; to acquit him of all penalties annexed to the offense forwhich he obtafnshis pardon.'
You are advised, in the 1Fght of the above quotations and citations of authority, that if full and uncondltIona1pardons are granted', with restoratfon of citfzenship, that inmates of the Texas Prison System, after their release, are eliglble.to take the examination for, and upon meeting all other'requirementsof the Board of Hairdressing and Cosmetology, to practice the profession or follow the occupation of coametologiata. Without such pardon, the converse Is true, and the secttons of the statutewe set out abovewould constitute a bar.Texas Prison Board, page 5 o-2359

Yours very truly
ATTORNEY GJNERAL OF TEXAS

By s/BenjkmlnWoocMll BenjamlnWoodtill

Assistant
BW:BBB:wc

APPROVED SEP 17, 1940 s/GeraldC. Mann ATTORNEYGENERAL OF TEXAS Approved Oplnlon CommitteeBy s/BWB Chalrman