Mr. W. C. Lindsey 

Criminal District Attorney 

Office of Criminal District Attorney Opinion No. M-640 

Jefferson County 

Beaumont, Texas RE: Construction of 

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 thereafter be released from al'l. penalties and disabilit<es 

resulting from the offense or crime of whrch 

he has been convicted or to which he has 

pleaded guilty, except that proof of hi 

said conviction or 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 

conviction has 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 employment that 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: 

-3059- 
Ur. W. C. Lindsey, page 2, (M- 640 ) 

"In case the defendant has been convicted 

or has entered a plea of guilty or a plea of 

nolo contendere, and the court has discharged 

the defendant hereunder, such court may set 

aside the verdict or permit the defendant 

to withdraw his plea, and shall dismiss the 

accusation, complaint, information or 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, information or indictment in addition to specifically releasing the person from all penalties and disabilities, it is our opinion that such person may serve on a 

jury or vote at an election provided 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 "judgment of 

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 employer that he has never been convicted 

is not dealt with in the statute. Employers.are entitled to 

know the truth about their prospective employees, and this 

the statute has not taken away. Such is not, a 'penalty" or 

'disability* which was released by the etatute. It is, 

therefore, concluded that such person cannot state in an 

application of employment that he had never been "convicted 

of a felony." 

we are strengthened in our opinion by an express 

statutory distinction between the effects of probation under 

Article 42.12, V.C.C.P. (Adult Probation Law) and under 

Article 42.13, V.C.C.P. (Misdemeanor Probation Law), Article 

42.13(2) defined-misdemeanor "probation" as "the release . . . 

of a defendant who has been found uilt 

-7-9--y 

W (Emphasis supplied) 

Such a probated sentence does no ecome a final conviction 

-3060- 
Hon. W. C. Lindsey, Page 3, (M-640 1 

unless probation is revoked. CF. Se&. 4(a) and 6(b), 

Art. 42.13. Article 42.13 further provides that when 

a defendant is discharged from probation, the finding of 

guilty may not thereafter "be considered for any purpose." 

(Emphasis supplied by statute). 

On the other hand, Article 42.12 defines *probation" 

under the Adult Probation Law as "the release of a convicted 

defendant.' C.F. Section 2(2) (Emphasis supplied). W 

find no language in Article 42.12 indicating Legislative 

intent that a probationer not be considered as convicted. 

Rather, it appears clear that the Legislature intended 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 discharged and the 

court has set aside the verdict or permitted him 

to withdraw his plea and the court has dismissed 

the accusation, complaint, information, or indictment under the provisions of Section 7, 

Article 42.12, Texas Code of Criminal Procedure, 

he regains his civil rights, i.e. the right to 

vote and serve on juries if otherwise.qualified. 

Such person, however, nay not truthfully state 

that he has never been "convicted" of a felony 

in an application for employment. 

Very truly yoursr 

fl 

General of Texas 

Prepared by Howard M. Fender 

Assistant Attorney 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 

Executive Assistant 

NOLA WHITE 

First Assistant Attorney General 

-2062-