Mr. W. C. Lindsey

Criminal DistrictAttorney Office **of** Criminal **District Attorney**  Opinion No. M-640 JeffersonCounty Beaumont,Texas RE: Constructionof Article 42.12, Section.7,Code of pear Mr. Lindsey: Criminal Procedure. **YOU** have requested the opinion of this office concerning an interpretation **of** Section 7 , Article 42.12, Texas Code of Criminal Procedure. In your letter the question is set forth as follows8 .~

*Under CCP Article 42.12..Section 7 which states '.
. . who shall thereafterbe released from al'l.

penaltiesand disabilit<es resulting from the offense or **crime** of whrch he has been convictedor to which **he** has pleaded guilty, except that proof of hi said convictionor plea of guilty shallSbe made known to the Court should the defendant again be convicted **of** any criminal offense'. (Emphasis

added.) 'Can such a person after judgment **of** convictionhas been set aside state truthfully therefore that he has never been convicted of a felony? Would he **therefore** be eligible to serve on a jury, vote and state in an application**of** employmentthat he had never been convicted of a felony?"

. . The first portion of the sentence in Section 7 (from which you have quoted the last portion) states:

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"In case the defendanthas been convicted or has entered a plea of guilty or a plea of nolo contendere,and the court has discharged the defendanthereunder,such court may set aside the verdict **or** permit the defendant to withdraw his plea, and shall dismiss the accusation,complaint,informationor indictment against such defendant

. . .* Since the statute specifically provides that the court shall set aside the verdict or permit the defendant to withdraw his plea dnd shall dismiss the accusation, complaint, informationor indictmentin addition to specifically releasing the person from all penaltiesand disabilities, it is our opinion that such person **may** serve on a jury or vote at an electionprovided that he is otherwise qualified. These are civil rights which the statute seeks to restore to such defendant. However, in view of the fact that the statute thereafter goes on to declare that '.
. . proof of his state conviction

. . .O be convicted

. . (emphasis added) and to say ".
. . again .m (emphasis

added), and **in** view of the fact that~no provision is made for expunging the "judgmentof convictionm from the record, the statute by its own wording makes it clear that the "conviction"itself has not been entirely erased. The right of such a defendant to state to .his prospective employerthat **he has**  never been convicted is not dealt with in the statute. Employers.areentitledto know the truth about their prospectiveemployees,and this the statute has not taken away. Such is not, a 'penalty"or 'disability*

which was releasedby the etatute. It is, therefore,concluded that such person cannot state in an applicationof employmentthat he had never been "convicted of a felony."

we are strengthenedin our opinion by an express statutorydistinctionbetween the effects of probationunder Article 42.12, V.C.C.P. (AdultProbationLaw) and under Article 42.13, V.C.C.P. (Misdemeanor Probation Law), Article 42.13(2)defined-misdemeanor "probation"as "the release

. . . of a defendantwho has been found uilt -7-9--y W (Emphasissupplied) Such a probated sentencedoes no ecome a final conviction

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revoked. CF. Se&. 4(a) and 6(b), unless probation is Art. 42.13. Article 42.13 further providesthat when a defendant is discharged from probation,the findingof guilty may not thereafter "be considered **for** any purpose." (Emphasissuppliedby statute). On the other hand, Article 42.12 defines *probation" under the Adult Probation Law as "the releaseof a convicted defendant.' C.F. Section 2(2) (Emphasissupplied). W find no language in Article 42.12 indicating Legislative intent that a probationernot be consideredas convicted. Rather, it appears clear that the Legislatureintended the effect of discharge fron ,probation be simply to release such persons from all penalties resulting from their convictions. SUMMARY When **a person**  has been dischargedand the court has set aside the verdict or permittedhim to withdraw his plea and the court has dismissed the accusation,complaint, information, or indictment under the provisionsof Section 7, Article 42.12, Texas Code of Criminal Procedure, he regainshis civil rights, i.e. the right to vote and serve on juries if otherwise.qualified. Such person, however, nay not truthfullystate that he has never been "convicted"of a felony in an applicationfor employment. Very truly yoursr fl

General **of** Texas Preparedby Howard M. Fender AssistantAttorney General

-3061-Hon. W. C. Lindsey,page 4, (M-640 )

APPROVED: OPINION COMMITTEE Kerns Taylor, Chai2m.m W. E. Allen, Co-Chainnan Jay Floyd Bob Lattimore Brandon Bickett Bob Darden UEADE F. GRIFFIN Staff Legal Assistant
ALFRED **WALKER** ExecutiveAssistant NOLA WHITE First AssistantAttorney General

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