OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS

JOHN CORNYN

July lo,2001

Mr. Thomas A. Davis, Jr. Director Texas Department of Public Safety 5805 North Lamar Boulevard, Box 4087 Austin, Texas 78773-0001 Opinion No. JC-0396
Re: Whether aperson who has been pardoned for a felony conviction is subject to section 46.04 of the Penal Code, and related questions (RQ-0349-JC)
Dear Mr. Davis: Under section 46.04 ofthe Penal Code, a“convicted” felon commits an offense ifhe or she unlawfully possesses afirearm. TEX.PEN.CODEANN.§46.04(a) (Vernon 1994). You ask whether aconvicted felon who has been pardoned is convicted for the purposes of section 46.04.’ Although apardon that is not for subsequent proof of innocence does not obliterate the underlying offense, a full, unconditional pardon generally erases the conviction’s consequences. See Jones v. State, 147 S.W.2d 508,510 (Tex. Crim. App. 1941); W an-en v.State, 74 S.W.2d 1006,1007 (Tex. Crim. App. 1934). For this reason, we conclude that a felon who has been pardoned without condition is not subject to section 46.04 and does not violate section 46.04 by possessing afirearm. The fact that the pardoned felon may remain convicted is irrelevant.
You similarly ask whether a person whose felony conviction has been “set aside” under article 42.12 ofthe Texas Code of Criminal Procedure is convicted for the purposes of section 46.04 of the Penal Code. Request Letter, supra note 1, at 1. We assume that you refer to the procedure under article 42.12, section 20 by which ajudge may set aside a defendant’s verdict or permit the defendant to withdraw aplea. See TEX.CODE GRIM.PROC.ANN.art. 42.12,s 20(a) (Vernon Supp. 2001). Because adefendant whose verdict is set aside orwho ispermitted to withdraw aplea under article 42.12, section 20 is generally “released from allpenalties and disabilities resulting from the offense or crime ofwhich he has been convicted orto which he has pleaded guilty,” id., we conclude that a defendant whose guilty verdict has been set aside or who has been permitted to withdraw a plea is, like apardoned felon, not subject to section 46.04 ofthe Penal Code.

‘Letter from Mr. Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable John Cornyn, Texas Attorney General (Feb. 13,200l) (on file with Opinion Committee) [hereinafter Request Letter].Mr. Thomas A. Davis, Jr. - Page 2 (JC-0396)

Section 46.04 of the Penal Code restricts firearm possession by a convicted felon:

(a) Aperson who has been convicted of afelony commits an offense ifhe possesses a firearm:

(1) after conviction and before the fifth anniversary ofthe person’s release from confinement following conviction ofthe felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by Subdivision (l), at any location other than the premises at which the person lives. (b) An offense under this section is a felony of the third degree.
TEX.PEN.CODEANN.946.04 (Vernon 1994). Thus, no convicted felon may possess a firearm for five years after the felon’s release from confinement or supervision. See State v.Mason, 980 S.W.2d 635, 638 (Tex. Crim. App. 1998) (en bane). After that five-year period, the convicted felon may possess a firearm only at “the premises at which the person lives.” See id.; see also Tex. Dep ‘tof Pub. Safety v.McLendon, 35 S.W.3d 632,633 (Tex. 2000) (concluding that, in general, defendant whose adjudication has been deferred remains convicted).
Your questions require us first to determine an appropriate definition forthe term “convicted” in section 46.04. Section 46.04 itself does not define the term. Consequently, we must look elsewhere.
You suggest that we apply the definition of “convicted” in section 411.171 of the Government Code, which defines various terms for the statutes providing for a license to carry a concealed handgun. See TEX.GOV’TCODE ANN.§411.17 l(4) (Vernon Supp. 2001); Request Letter, supra note 1, at 1. Under section 411.171(4), the term “convicted” generally encompasses a defendant who has been adjudicated guilty or whose order of adjudication has been deferred under article 42.12, section 5ofthe Code ofCriminal Procedure, but the term does not include adefendant who has been pardoned:“Convicted” means an adjudication of guilt or an order of

deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition ofthe sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:Mr. Thomas A. Davis, Jr. - Page 3 (JC-0396)



### (4 expunged; or (B) official. pardoned under the authority of a state or federal

TEX.GOV’TCODEANN.8411.171(4) (Vernon Supp. 2001). A convicted felon is ineligible to carry a concealed handgun. See id. 8411.172(a)(3). Although section 46.04 ofthe Penal Code and section 411.17 1ofthe Government Code both pertain to some aspect of firearm possession by a convicted felon, we cannot apply section 411.171(4)‘s definition of “convicted” to section 46.04 of the Penal Code. When the legislature defines aterm in one statute and uses the same term in relation to the same subject matter in a later statute, we may presume that the legislature used the term in the same way. See Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675,677-78 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ); accord R.R. Comm iz of Tex. v. Bishop Petroleum, Inc., 736 S.W.2d 724, 730 (Tex. App.-Waco 1987), rev’d inpart on other grounds, 751 S.W.2d 485 (Tex. 1988). Here, section 411.17 1ofthe Government Code, pertaining to concealed handguns, is the later enacted statute. Its substance was first adopted in 1995. See Act of May 16, 1995, 74th Leg., R.S., ch. 229, 5 1, art. 4413(29ee), sec. l(4), 1995 Tex. Gen. Laws 1998,1999. The substance of section 46.04 ofthe Penal Code was first adopted much earlier, in 1949. See Act of June 30, 1949, 51st Leg., R.S., ch. 599, 8 1, 1949 Tex. Gen. Laws 1186, 1186. Accordingly, we cannot presume that the earlier enacted statute, section 46.04 of the Penal Code, assigns the same meaning to the term “convicted” that section 411.17 1of the Government Code articulates.
In our opinion, the term “convicted” in section 46.04 ofthe Penal Code denotes afelon who has been found orpleaded guilty. Words that are not defined in the statute must “be read in context and construed according to the rules of grammar and common usage.” TEX.GOV’T CODEANN. 9 311.Ol 1(Vernon 1998). We thus seek to define the term “convicted” in light of the purpose of section 46.04. According to the Texas Court of Criminal Appeals, section 46.04’s “obvious intent

...isto keep violent offenders from going about with firearms.

... Because they have demonstrated apropensity toward violence, the State has arational basis on which to restrict their possession of firearms

. . .to protect the general public.” Lucas v. State, 791 S.W.2d 35, 64 (Tex. Crim. App. 1989) (en bane); see also iMason, 980 S.W.2d at 638-39 (discussing legislative history of section 46.04). As commonly defined, the term “convicted” means “[plroved or found guilty; condemned.” III OXFORDENGLISHDICTIONARY879 (2d ed. 1989). This broad definition comports with the legislature’s “obvious intent” to protect the public. See Lucas, 791 S.W.2d at 64. Strictly speaking, apardoned felon remains convicted of acrime unless the pardon is based upon a subsequent proof of innocence: While apardon’s “very essence” is to forgive the felon or to remit the penalty, “apardon implies guilt; it does not obliterate the fact ofthe commission of the crime and the conviction therefor.” Jones, 147 S.W.2d at 510 (quoting 46 C.J. 1193); accord Donald v.Jones, 445 F.2d 601,606 (5th Cir. 1971) (quoting Gurleski v. United States, 405 F.2d 253, 266 (5th Cir. 1968), cert. denied, 395 U.S. 981 (1969)) (“‘A pardon for any. . .reason [other] thanMr. Thomas A. Davis, Jr. - Page 4 (JC-0396)

subsequent proof of innocence does not obliterate the defendant’s previous transgressions.“‘); Scrivnor v.State, 20 S.W.2d 416,421 (Tex. Crim. App. 1928) (stating that pardon cannot obliterate prior conviction, which “remains a fact despite the pardon”). Yet, apardon absolves aconvicted felon ofthe conviction’s legal consequences. Apardoned felon isrelieved from the conviction’s legal consequences, “direct orcollateral.” Warren, 74 S.W.2d at 1008; see Exparte Lefors, 303 S.W.2d 394, 397 (Tex. Crim. App. 1957) (stating that pardon is act of grace “exempting the individual on whom it is bestowed from the punishment that has been assessed against him by the court”); Jones, 174 S.W.2d at 510 (citing United States v. Swift, 186 F. 1002,1016 (ND. Ill. 1911)) (stating that pardon obliterates offense “to such extent that for all legal purposes the

. . .offender is

. . .relieved in the future from all its results”); Scrivnor, 20 S.W.2d at 420 (quoting 24 AMERICAN& ENGLISH ENCYCLOPEDIA

OFLAW 584) (stating that absolute pardon prevents “all further punishment for the offense

. . . , to remove all penal consequences and disabilities incident to the conviction”). While apardoned felon who was not pardoned for subsequent proof of innocence remains, strictly speaking, aconvicted felon, section 46.04 ofthe Penal Code does not apply to felon who has been unconditionally pardoned. In our opinion, section 46.04’s restriction on firearm possession is a legal consequence of a felony conviction from which the pardoned felon is generally absolved. If the pardoning official believes that the felon should not be able to possess a firearm, the pardon can be conditioned upon the premise that the felon will not possess afirearm in all or some locations. See Warren, 74 S.W.2d at 1008 (indicating that conditional pardon may become void when specified event transpires). Accordingly, a felon who has been pardoned without condition may, without regard to section 46.04, possess a firearm. See TEX.PEN.CODEANN.546.04 (Vernon 1994).
You next ask whether a felon who has had aconviction set aside under article 42.12 of the Texas Code of Criminal Procedure is convicted for the purposes of section 46.04 ofthe Penal Code. See Request Letter, supra note 1, at 1. We assume that you refer to adefendant whose verdict has been set aside or whose plea has been withdrawn under article 42.12, section 20. See TEX.CODE GRIM.PROC.ANN. art. 42.12, 4 20(a) (Vernon Supp. 2001). Under section 20, ajudge may set aside averdict or permit a defendant to withdraw aplea when the defendant successfully completes a shortened period of community supervision: (a) At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge. Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, thejudge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. IfMr. Thomas A. Davis, Jr. - Page 5 (JC-0396)

thejudge discharges the defendant under this section, thejudge may set aside the verdict orpermit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime ofwhich he has been convicted or to which he has pleaded guilty, except that:

(1) proof ofthe conviction orplea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and

(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying, orrevoking alicense under that chapter. (b) This section does not apply to adefendant convicted ofan offense under Sections 49.04 - 49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender isrequired under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, or a defendant convicted of an offense punishable as a statejail felony. Id. art. 42.12, 0 20.

In our opinion, the limitation on firearm possession in section 46.04 of the Penal Code is a penalty or disability for the purposes of article 42.12, section 20. The nature of the “penalties and disabilities” from which the section releases a defendant is not discussed in article 42.12. See id. 820(a). This office previously has indicated that astatute that releases adefendant from penalties and disabilities mitigates punishment “by restoring certain rights and removing certain disabilities.” Tex. Att’y Gen. Op. No. MW-148 (1980) at2 (quoting In rePhilips, 109P.2d 344,347 (Cal. 1941)). The statute thus “seeks to restore to” the defendant some, but not all, “civil rights” and privileges. See Tex. Att’y Gen. Op. No. M-640 (1970) at 2. For example, under article 42.12, section 20, a convicted defendant “may serve on ajury or vote at an election.” Id.; see Payton v. State, 572 S.W.2d 677,678 (Tex. Crim. App. 1978) (en bane) (citing Attorney General Opinion M-640 (1970) for proposition that being “released from all penalties and disabilities” includes “disability to serve on ajury”). By contrast, article 42.12, section 20 does not relieve a convicted defendant of a duty to inform aprospective employer ofprevious convictions. Tex. Att’y Gen. Op. No. JM- 1237 (1990) at 4. We believe that possessing ahandgun under section 46.04 is similar to serving on ajury orMr. Thomas A. Davis, Jr. - Page 6 (JC-0396)

voting at anelection and isunlike aprivate employer’s right toknow about ajob applicant’s criminal history. Moreover, possessing a firearm under section 46.04 of the Penal Code is not among those circumstances that article 42.12, section 20 of the Code of Criminal Procedure expressly lists in which a set-aside verdict or withdrawn plea may be considered. See TEX.CODEGRIM.PROC. ANN. art. 42.12, 8 20 (Vernon Supp. 2001). If a defendant who has had averdict set aside under article 42.12, section 20 is convicted of a subsequent offense, for instance, the defendant must inform the court adjudicating the subsequent offense that he or she had been convicted or pleaded guilty to a previous offense. See id. 92O(a)(1);see also id. 520(a)(2) (permitting Texas Department ofHuman Services to consider conviction or guilty plea if defendant applies for or holds license to provide child care under chapter 42, Human Resources Code). And ajudge may not set aside the verdict or allow the defendant to withdraw aguilty plea ifthe conviction is for an offense under sections 49.04 through 49.08 of the Penal Code (relating to various offenses committed while intoxicated); ifthe conviction is for an offense for which registration as a sex offender is required under chapter 62 of the Code of Criminal Procedure; or if the conviction is for an offense punishable as a state jail felony. See id. 820(b). ’ Finally, no other statute specifically forbids adefendant who has been released from penalties and disabilities under article 42.12, section 20 topossess ahandgun under section 46.04 ofthe Penal Code. Article 42.12, section 20 does not, for instance, preclude a licensing body from considering the conviction in connection with its decision torevoke an occupational license where the licensing act permits or requires revocation for a conviction. See Tex. Att’y Gen. Op. No. MW-148 (1980) at 1. And the Texas Supreme Court has expressly noted that, because section 411.17 1 of the Government Code defines the term “convicted,’ for the purposes of carrying a concealed handgun to include aperson who isdischarged from community supervision, aperson whose verdict has been set aside under article 42.12, section 20 of the Code of Criminal Procedure may not be eligible to apply for a license to carry a concealed handgun: “If the Handgun Act didn’t include a specific definition ofthe term ‘convicted,’ then the inability to obtain aconcealed-handgun license might be one of the penalties and disabilities removed

. . . . But the Act does include a specific definition.” Tune v. Tex. Dep ‘tofPub. Safety, 23 S.W.3d 358,364 (Tex. 2000). Consequently, a defendant whose verdict has been set aside or who has been permitted to withdraw aplea under article 42.12, section 20 of the Code of Criminal Procedure may possess a firearm without regard to section 46.04 of the Penal Code. Our construction of section 46.04 ofthe Penal Code with respect to aconvicted felon whose verdict has been set aside or who has been permitted to withdraw aplea under article 42.12, section 20 of the Code of Criminal Procedure comports with a very recent decision of a Texas court of appeals. See Cuellar v. State, 40 S.W.3d 724 (Tex. App.-San Antonio 2001, no pet.). “Importantly,” the court pointed out, article 42.12, section 20 does not except from its general release from all penalties and disabilities those restrictions relating to firearm possession that section 46.04 of the Penal Code imposes. See id. at 728. “Further,” the court continued, section 46.04 does notMr. Thomas A. Davis, Jr. - Page 7 (JC-0396)

define the term “convicted,’ expansively like section 411.171 of the Government Code does. See id. To permit both section 46.04 of the Penal Code and article 42.12, section 20 of the Code of Criminal Procedure to “‘stand together and have concurrent efficacy,“’ the Cuellar court held that an order issued under article 42.12, section 20 releases the convicted felon “of the penalty limiting his right to possess a firearm.” Id. (quoting Davis v. State, 968 S.W.2d 368,372 (Tex. Crim. App. 1998)).
You suggest that the issues you raise implicate 18 U.S.C. 8 922(g)(l), which makes it unlawful for aperson “who has been convicted

. . .of, a crime punishable by imprisonment for a term exceeding one year. . .to
. . .possess in or affecting commerce, any firearm

. . . ;or to receive any firearm.

..which has been shipped ortransported in interstate or foreign commerce.” 18U.S.C. 8922(g)( 1)(1994). For the purposes of section 922, aperson whose conviction has been expunged or set aside “or for which a person has been pardoned or has had civil rights restored,’ is not convicted unless the “pardon, expungement, orrestoration ofcivil rights expressly provides that the person may not.
. .possess, or receive firearms.” Id. 3921(20). As we have construed Texas law, a person who has received a full, unconditional pardon, whose verdict has been set aside under article 42.12, section 20 ofthe Code of Criminal Procedure, or who has been permitted to withdraw aplea under article 42.12, section 20, has had his or her civil rights restored for the purposes of 18 U.S.C. 8 922(g)(l). Thus, 18 USC. § 922(g)( 1) does not affect such aperson’s possession of a firearm.Mr. Thomas A. Davis, Jr. - Page 8 (JC-0396)

SUMMARY
For the purposes of section 46.04 of the Penal Code, which limits a convicted felon’s authority to possess a firearm, the term “convicted,’ denotes a felon who has been proven guilty. See TEX. PEN. CODEANN. 8 46.04(a) (Vernon 1994). Nevertheless, a felon who has received afull pardon isnot subject to the disability imposed by section 46.04. Accordingly, a pardoned felon may possess a firearm without violating section 46.04.
A convicted felon whose verdict has been set aside orwho has been permitted to withdraw aguilty plea under article 42.12, section 20 of the Code of Criminal Procedure is not subject to section 46.04 of the Penal Code because the statute releases such felon from “all penalties and disabilities resulting from the offense.” TEX. CODE GRIM.PROC.

ANN.art. 42.12’8 20(a) (Vernon Supp. 2001); see also Cuellar v. State, 40 S.W.3d 724,728 (Tex. App.-San Antonio 2001, no pet.). 

# &.TJl$y&~

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General NANCY FULLER Deputy Attorney General - General Counsel SUSAN D. GUSKY Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee