DAN MORALES Al-r”RNEY GENERAL 

QBffice of tfy ~ttornep QaeneraI 

Sbtate of Gexae 

May 31.1995 

Mr. Vior Rodriguez 

Chair 

Texas Board of Pardons and Paroles 

t’.O. Box 599 

Huntsville, Texas 77342 

Opiion No. DM-349 

Re: Wbetber a person wbo Ius successfully 

completed deferred adjudication ~comtnunity 

SUpUViSiOll~WbOlUtSbeendiSCb8l.gCd 

after dismissal of charges pursuant to eection 

5(c) of u-tide 42.12 of the Code of Ctiminal 

Procedure is eligible to apply to the Board of 

Pardons end Paroles for a pardon (RQ-683) 

Dear Mr. Rodrigtlez: 

Your predecessor asked this office wbetber a person wbo has succcssftdly 

completed deferred adjudication comnhty supervision I&I who has been discharged 

atIer dimissd of charges pursuant to seotion S(c) of srticle 42.12 of the Code of Criminal 

F9acedure is eligiile to apply to the Board of Partixui and Paroles (the “board”) for a 

pardon. The board exists by virtue of article 42.18 of the Code of Criminal Procedure (the 

“code”) and the mandate of section 11(a) of a&e IV of the Texas Constitution. 

Subsection (b) of section 11 and code article 48.01 botb provide in patinent part as 

follows: 

In8llcrimindcdsqexcepttmsonandimpmcbn~the 

Governor shall have power, qfffrr com+fiorr, on the written signed 

recommendation and advice of the Board of Pardons and Paroles, or 

a majority thereof; to pant repiieves and commutations of 

punishments and pardons. . . . 

Tex. Const. ert. IV, 5 11(b) (emphasis added); Code Grim. Proc. ert. 48.01 (emphasis 

added).’ 
Mr. Victor Rodriguez - Page 2 (DM-349) 

Your predecessor explained that persons who have successfully completed 

deferred adjudication community supervision rue seeking full pardon9 after the dismissal 

of their &minsl charges pursuant to code article 42.12, section S(c). These persons 

apparently wish to benefit from the pardons they seek by obtaining expunction of their 

arrest records. See Code Grim. Proc. art. 55.02 (setting forth procedure for expunction). 

They would claim in a petition for expunction that they are entitled to such relief under 

code article 5501(a)(l)(B), which provides as follows: 

(a) A person who hss been arrested for commission of either a 

felony or misdemeanor is entitled to have all records and files relating 

to the mest exptmged if: 

(1) the person is tried for the offense for which the person was 

arrested end is: 

. . . . 

(B) convicted and subsequently pardoned. . . . 

Your predecessor asked whether the requirement of a “conviction” in the abovequoted wnsthutional and staMory pardon provisions disquahges these persons from 

pssdon eligibility for the reason that they have not undergone an “adjudication of guilt, 

id. rrt. 42.12, 0 5(c). Your predecessor explained the reason for this question in part as 

follows: “Since there is no conviction when charges are dismid our staff questions 

whether the policy of accepting applications for fidl psrdons is appropriate when there is 

no wnviction.” 

Subsections (a) to (c) of section 5 of code article 42.12 provide in part as follows 

(with emphasis added): 

(a) Except as provided by Subsection (d) of this section, when 

in the judge’s opinion the best interest of society and the defendant 

wig be served, the judge may, qtier receiving opleo of guif@ or plea 

of nolo cmten&re, hearing tk evidence, and findig that it 

srrbsrenriolrs the &femkmt ‘s guilt, defer further proceedings without 

entering an adjudication of guilt, and place the defendant on 

community supervision. . . . 

p. 1858 
Mr. Victor Rodriguez - Page 3 (DM-349) 

(b) On violation of a condition of community supervision 

imposed under Subsection (a) of this section, the defendant may be 

arrested and detained as provided in Section 21 of this article. The 

defendant is entitled to a hearing limited to the determination by the 

COWI of whether it proceeds with an adjudication of guilt on the 

o@d charge. No appeal may be taken from this determination. 

After an adjudication of guilt, all proceedings, including assessment 

Of punishment, pronouncement of sentence, granting of community 

arpavision, and defendant’s appeal continue as ifthe adjudication of 

guilt had not been deferred. 

(c) &I expiration of community supervision imposed under 

Subsection (a) of this section, if the judge has not proceeded to 

adjudication of guilt, thefudse rho11 Amisr the proceedings against 

the &fendmt anddtscharge him. , . . 

Weareoftheopinionthatapersonchargedwithauiminaloffbnsewhohas 

successlYly completed defbrred adjudication community supervision is not eligible to 

apply to the board for a pardon, but we believe it is unnecemary to determine whether 

deferred adjudication involves a “conviction” in order to reach this conclusion. If a 

6ndmg of substantiated guilt under section 5(a) of code article 42.12 is not a %onviction” 

for purposes of the governor’s constitutional pardon power, then the govemor has no 

power to grant a pardon for the offense for which the defendant was found guilty because 

the pardon could not be granted “after conviction,” Tex. Const. art. IV, 8 1 l(b). On the 

other hand, if a fmdhrg of substantiated guilt is a %.onviction,” then for the following 

reasons a subsequent dismissal of the proceeding without an “adjudication of guilt” 

pursuant to section S(c) would remove the matter from the governor’s pardon power. 

Subsection (c) continues after the above-quoted passsge to provide that, generally, 

“[a] dismissal and discharge under this section may not be deemed a conviction for the 

purposes of disqualifications or disabilities imposed by law for conviction of an offenses,” 

but that the defendant’s prior receipt of deferred adjudication community supervision may 

be considered in the punishment phase of a prosecution for a subsequent offense, Code 

Crim. Proc. an. 42.12, $5(c)(l); see id. art. 37.07, 5 3, or in the process of determining 

whether to issue. renew, deny, or revoke either of the following: a license to operate a 

child-care facility or child-placing agency, id. art. 42.12. 0 5(c)(2); me Hum. Res. Code 

ch. 42, or a license or registration to provide rehabiitative mental health or medical 

se&es to scx offenders, Code Grim. Proc. art. 42.12, 0 5(c)(3); see V.T.C.S. art. 

413(51).’ we are of the opinion that none of the provisions in subsection (c) establish 

penalties or d&bilities that are within the governor’s power to forgive by pardon. 

p. 1859 
Mr. Victor Rodriguez - Page 4 (DM-349) 

A pardon (other than one based on a finding of actual innocence) can relieve a 

person only from the punishment thst the law attaches to the commission of a crime. 

Clemency power is vested in the Governor to the extent only that he 

can remit fmes imposed which remain unwllwted and discharge the 

wnvicttromtIntherpenslservice.. . . 

. . . . 

The Governor csn forgive the penalty, but he hss no power to 

direct that the courts shall forget either the crime or the conviction. 

Jones v. State, 147 S.W.Zd 508,511 (T&x. Grim. App. 1941). Any rights of citizenship 

that were lost as a result of the wnviction constitute a plvt of the punishment for the 

crime, .so the governor also may restore such rights by pardon. Miller v. State. 79 S.W. 

567. 567-68 (Tar. Grim. App. 1904) (pardon restores testimonial wmpetenq); see 

Eprrcnooad v. Srafe, 31 S.W. 2%. 2% (Tex. Grim. App. 1895) (fill pardon restores 

rights of jury service and sufkage). Bkk’s Law DicHw dafkes pordm as ‘[a]n 

exwutivc action that mitigates M sets aside p&&nent for a crime- and “restores the 

rights and privileges forfeited on account of the offense.” BUM’S LAW DICTIONARY 

1113 (6th cd. l!ao). 

(1) uponcowinionofr~to6asc,tbchcttbatthcdcfcndanthod 

previotlsly tcwivcd conlnltity supavkloll wall 8 dda7cd a&ldkation of @lilt 

SlUUbCdlOkdbkbCfO?CthCCOWtOIjuytObCcosrridacdOllUlCiWJCOf 

parslty; 

Code Crh F’mc. ut 42.12.0 5(c) @“‘~huir ddcd). 

p. 1860 
Mr. Victor Rodrig& - Page 5 (DM-349) 

A pardon does not, howwer, “‘obliterate the fact of the commission of the crime 

and the wnviction therefor, it does not wash out the morsl stain,“’ Jones, 147 S.W.Zd at 

510 (quoting 46 C.J. Parulw 8 32, at 1193 (1928)); acwrdErparte Smith, 548 S.W.Zd 

410,414 (Tex. Grim. App. 1977), ovemded on other ground% by Expmle Blume, 618 

S.W.Zd 373,376 (Tex. Grim. App. 1981), unless the pardon is based on actual immcence, 

see Logon v. State. 448 S.W.Zd 462, 464 (Tex. Crbn. App. 1969) (there would be no 

offense if pardon was based on finding of innocence). A prior conviction may be offered 

,@ evidence in a subsequent prosecution for the purpose of enhancement of punishment, id. 

at 511-12; 9ce Pensl Code 0 12.42, or to bar statutory eligiii for probation 

wnsideration, Watkins v. Store. 572 S.W.Zd 339,343 (Tex. Crim. App. 1973); see Code 

Grim. Proc. art. 42.12.0 4(e). regardless of the fict that the defendant has rewived a 111 

pardon.’ Siiy, a prior conviction that has been pardoned for any reason other than 

hmownw is -available to deny bail under Texas Constitution article I, section 11-A, Er 

purte Smith, 548 S.W.Zd at 414. or lo prove the offenses of possession of firearms by a 

convicted felon, Rrmo v. S&zfe, 556 S.W.2d 808, 809 vex. Grim. App. 1977). and 

possession of burglary tools by a wnvicted felon, m v. Skafe, 448 S.W.2d at 463-64. 

Furthermore, a felon who testifies may be subject to impeachment by proof of his 

conviction even ifhe has been pardoned, Sipanek v. Stute, 272 S.W. 141.142 (Tex. Crim. 

App. 1925); see Tex. R Crim. Evid. 6OQ. unless he shows that the pardon was gmnted on 

the ground of immcence or total reformation, Bennett v. State, 5 S.W. 527. 529 (Tex. 

App. 1887). In the absence of such a showing, a pardon “does not change the wmmonlaw principle that the wnviction of an infamous offense is evidence of bad character for 

truth.” Id. Fiiy, a pardon will not restore the 05ce of attorney to a penon who has 

been disbarred because of a prior conviction or restore the good character that the person 

must possess to be admitted to the bar. Hankamer v. Templin, 187 S.W.Zd 549. 550 

(Tex. 1945).’ 

The foregoing authorities show that ~a pardon that is not based on a Ming of 

innocence may reach only the punishments, penalties, disabilities, and disqualikttions that 

the law would attach to the pardoned conviction. Such a pardon neither affects the penal 

wnsequences of any subsequent offenses nor restores a person’s reputation or good 

character. Jones, 147 S.W.Zd at 510-11. 

Therefore, lo the extent that the law permits the fact of a prior conviction lo be 

considered (1) in assessing the pensl wnsequenws of a subsequent offense or (2) in 

determining whether the jkrson possesses the good character requkd for licensing in a 

p&ion of mspwsiiity and trurt, the governor has no power to intervene by granting 

p. 1861 
tar. vztor~octnguu - rage 6 wn-39, 

such a pardon. The provision in subsection (c)(l) of section 5 of article 42.12 is of the 

former nature; that subsection merely authorizes consideration of the prior conviction in 

assessing the panal wnsequences of a subsequent offense. The provisions of subsections 

(c)(2) 8nd (c)(3) are of the latter nature; those provisions are merely limited grants of 

authority to consider the fact of the defbndant’s prior guilt when that guilt is relevant to 

the defmdaot’s character. None of the provisions in subsection (c) constitute wntinuing 

penalties M disltbiities. 

Because nothing remainstobepardonedafkrchargesaredismissedandthe 

defkndant is dischsrged pumant to subsection (c). we are of the opinion that any 

purported pardon of an o&se issued a&r dismissal and discharge would be a nullity for 

lack of an object. Cj. Miller, 79 S.W. at 56768 (goveroor may extead clemency even 

atier sewico of sentence on felony wnviction because such wtiction continues to 

deprive defendant of certain civil rights we-n after expiration of sentence).” wore, a 

defendant who has been dischmged under subsection (c) is not eligible for consideration 

fbrapardon. 

In closing, we note that an arrest that leads to prosecutioq defked adjudication, 

andultimatelydismissalofchargesisnotalegaldisabii. Thefhctthatapersonhasbcen 

~GSkdllUybeUlIb armssingandmaycauseproblemssuchasdifiiatltyinobtaining 

employment, and it may be tNe that exptmction of the rewrd of arrest would be of great 

benef%totheperson. Nev&eless,anarrestisnotapunirhmentorlegaldisabiiarising 

&om a conviction. Article 55.01 of tbe Code of Crimbial Procedure grant, a right of 

arpunctionofrmstrecords~61eswhenapmonhrrbeenwnvictedudthen 

pardoned, but it does not empower the governor to pardon an arrests 

p. 1862 
Mr. Victor Rodriguez - Pbge 7 (DM-349) 

SUMMARY 

A person who has successfully wmpleted deferred adjudication 

wmmtmity supervision and who has been discharged after dismissal 

of charges pursuant to section 5(c) of article 42.12 of the Code of 

Criminal Procedure is not eligible to apply to the Board of Psrdons 

and Paroles for a pardon for the crime of which the person was found 

guilty. for such a person has no legal dkahiities or disqualifications 

resulting from the deferred adjudication that are subject to remission 

by pardon. 

DAN MORALES 

Attomcy General ofTexas 

JORGE VEGA 

FiiAssiuantAttomeyGenenll 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

p. 1863