DAN 

## MORALES

Al-r”RNEY GENERAL QBffice

of tfy ~ttornep QaeneraI Sbtateof 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 dismissalof charges pursuant to eection 5(c) of u-tide 42.12 of the Code of Ctiminal Procedure is eligibleto apply to the Board of Pardons endParoles 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 ofthe 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, qfffrrcom+fiorr, on the written signed recommendationand advice of the Board of Pardons and Paroles, or a majority thereof; to pant repiieves and commutations of punishmentsand 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 adjudicationcommunity supervisionrue 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 expunctionthat they are entitled to such relief under code article 5501(a)(l)(B), whichprovides as follows:

(a) A person who hss been arrested for commissionof either a felony or misdemeanor

is entitledto have all records and filesrelating to the mest exptmgedif: (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 eligibilityfor the reason that they have not undergone an “adjudicationof guilt, id. rrt. 42.12, 0 5(c). Your predecessor explainedthe 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 applicationsfor 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 emphasisadded):

(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, thejudge may, qtier receivingopleo of guif@orplea of nolo cmten&re, hearing tk evidence, and findig that it srrbsrenriolrs

the&femkmt ‘

s guilt, defer furtherproceedingswithout entering an adjudication of guilt, and place the defendant on community supervision.

. . .

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(b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendantmay be arrested and detained as provided in Section 21 of this article. The defendantis entitled to a hearing limitedto the determinationby 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 adjudicationof guilt, all proceedings, includingassessment Ofpunishment, pronouncement of sentence, granting of community arpavision, and defendant’ sappeal continue as ifthe adjudicationof 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 adjudicationof 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 substantiatedguilt 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 offensefor whichthe defendantwas 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 removethe matter from the governor’ spardon power.
Subsection(c) continues after the above-quotedpasssge to providethat, generally,

“[a] dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualificationsor disabilitiesimposed by law for conviction of an offenses,” but that the defendant’ sprior receipt of deferred adjudicationcommunitysupervisionmay be considered in the punishmentphase 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-placingagency, 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 opinionthat none of the provisions in subsection (c) establish penalties or d&bilities that are withinthe governor’ s power to forgive by pardon.

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A pardon (other than one based on a finding of actual innocence) can relieve a person only from the punishment thst the law attachesto the commission of a crime. Clemencypower is vested in the Governorto the extent only that he
can remit fmes imposedwhich remain unwllwted and dischargethe wnvicttromtIntherpenslservice..

. .

. . . . The Governor csn forgive the penalty, but he hss no power to direct that the courts shallforget eitherthe crime or the conviction.
Jones v. State, 147 S.W.Zd508,511 (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

wall8 dda7cda&ldkation

of @lilt SlUUbCdlOkdbkbCfO?CthCCOWtOIjuytObCcosrridacdOllUlCiWJCOf parslty;

Code Crh F’ mc.

ut 42.12.0

5(c) @“‘~huir ddcd).

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A pardon does not, howwer, “‘ obliteratethefact of the commissionof the crime and the wnviction therefor, it does not wash out the morsl stain,“’Jones, 147 S.W.Zdat 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 otherground% by Expmle Blume, 618 S.W.Zd373,376 (Tex. Grim.App. 1981),unlessthe pardon is based on actual immcence,
see Logon v. State. 448 S.W.Zd462, 464 (Tex. Crbn. App. 1969) (there would be no offense if pardon was based on findingof innocence). A prior convictionmay be offered ,@ evidencein a subsequentprosecutionfor 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.Zd339,343 (Tex. Crim. App. 1973);see Code Grim.Proc. art. 42.12.0 4(e). regardless of the fict that the defendanthas rewived a 111 pardon. ’ Siiy, a prior convictionthat 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.Zdat 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 convictioneven ifhe has been pardoned,Sipanekv. Stute,272 S.W. 141.142 (Tex. Crim. App. 1925);see Tex. R Crim.Evid. 6OQ. unlesshe showsthat 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 changethe wmmonlaw principlethat 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 disbarredbecause of a prior convictionor restore the good character that the person must possess to be admittedto the bar. Hankamerv. Templin,187 S.W.Zd 549. 550 (Tex. 1945). ’
The foregoing authorities show that ~a pardon that is not based on a Ming of innocencemay reach only the punishments, penalties,disabilities,

and disqualikttions that the law would attach to the pardoned conviction. Such a pardon neither affectsthe penal wnsequences of any subsequent offenses nor restores a person’ s reputation or good character. Jones, 147 S.W.Zdat 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. 1861tar. 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 subsectionmerely authorizes considerationof the prior conviction in assessingthe 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 provisionsin subsection (c) constitute wntinuing penaltiesM 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 dismissaland dischargewould 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-nafter expiration of sentence).” wore, a defendant who has been dischmgedunder subsection (c) is not eligiblefor 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 exptmctionof the rewrd of arrest would be of great benef%totheperson. Nev&eless,anarrestisnotapunirhmentorlegaldisabiiarising &om a conviction. Article 55.01 of tbe Code of CrimbialProcedure grant, a right of arpunctionofrmstrecords~61eswhenapmonhrrbeenwnvictedudthen pardoned, but it does not empowerthe governorto pardon an arrests

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



## SUMMARY

A person who has successfullywmpleted deferred adjudication wmmtmity supervisionand who has been discharged after dismissal of charges pursuant to section 5(c) of article 42.12 of the Code of CriminalProcedure is not eligibleto apply to the Board of Psrdons and Paroles for a pardon for the crimeof whichthe person was found guilty. for such a person has no legal dkahiities or disqualifications resulting from the deferred adjudicationthat are subject to remission by pardon.

DAN MORALES Attomcy GeneralofTexas
JORGEVEGA FiiAssiuantAttomeyGenenll
SARAHJ. SHIRLEY Chair, OpinionCommittee

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