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The Attorney General of Texas 

4ARK WHITE 

dtorney General 

March 17, 1980 

Honorable Ben 2. Grant, Chairman 

House Judiciary Committee 

State Capitol 

Austin, Texas 

Dear Representative Grant: 

Opinion No. Mw-148 

Re: Whether a person who has 

successfully completed felony 

probation is eligible to be a peace 

officer. 

You have requested our opinion regarding whether a person who has 

successfully completed felony probation is eligible to be a peace officer. 

SeCtion 8a of article 4413(29aa), V.T.C.S., provides: 

(a) No person who has been convicted of a felony 

under the laws of this state, another state, or the 

United States may be certified by the Commission [on 

Law Enforcement Officer Standards and Educationl 

as qualified to be a peace officer. . . . 

(b) Final conviction of a felony under the laws of this 

state, another state, or the United States disqualifies 

a person previously certified by the Commission ss 

qualified to be a peace officer,. . . and the 

Commission shall immediately revoke the certification of a person 80 convicted. 

Section 7 of article 42.12, Texas Code of Criminal Procedure provides: 

. . . In case the defendant has been convicted em hss 

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 hi plea, and shall 

dismiss the accusation, complaint, information or 

indictment against such defendant, who shall 

thereafter be released from sR penalties and 

disabilities resulting from the offense or crime of 

which he has been convicted or to which be has 

pleaded guilty, except that proof of his said 

P. 473 
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Honorable Ben 2. Grant - Page Two (MW-148) 

conviction or plea of guilty shall be made known to the court should 

the defendant again be convicted of any criminal offense. 

(Emphasis added). You ask whether a person’s release “from all penalties and disabilities” 

is effective to prevent the commission from revoking his certification as a peace officer. 

See w 557 S.W.%d 363 (Tex. Civ. App. - Austin 1977, no writ). 

Section ‘I provides that, where the verdict against a convicted defendant hes been 

set aside by the court, or his plea of guilty has been withdrawn, he is thereafter released 

from aB penalties and disabilities which attach to the conviction, except that proof of 

conviction shall be ma& known to any court in which the defendant is subsequently 

convicted. In Attorney General Opinion M-840 ,(1970), this office held that section 7 

restores the civfl rights of the convicted individual, and renders him thereby eligible to 

vote and to serve on juries. Likewise, restoration of citizenship rights enables him to hold 

office. Attorney General Ophdon M-1184 (1972). 

But section 7 makes @ear that its effect is merely to restore the civil r’ hts of a 

convicted defendant, rather than to remove all evidence of the conviction. h the 

“right of . . . a defendant to state to [aI prospective employer that he has never been 

convicted” is not a ” ‘pendty’ or ‘disability’ which was released by the statute,” such a 

person may not truthfully deny his conviction in an application for employment. Attorney 

General Opinion M-840 (1970). Similarly, we do not believe that a convicted defendant’s 

release from all penalties and disabilities under section 7 means that ha no longer has a 

“final conviction.” Final conviction of a felony automatically results in the disqualification of a person previously certified, and requires the commission to “immediately revoke 

the certification of a person so convicted.” & Cooper v. Texas Board of Medical 

Examiners, 489 S.W.2d 129,132 (Tex. Civ. App. - El Paso 1973, writ rePd n.r.e.). 

Although Texas courts have not construed the term “penalties and diiabiities,” the 

courts of California have interpreted it on numerous occasions. ~ln Meyer v. Board of 

Medical Bxaminsrs, 298 P.2d 1085 (Cal. 19491, the California Supreme Court construed 

sectmn 1203.4 of the state penal code, which provided that in certaii instances where a 

verdict is set spide and the court dismisses the indictment, a defendant %hall thereafter 

be released from all penalties and disabilities resulting from the offense or crime of which 

he has bean convicted.” Tbawurt, quoting from its earlier decision in In re Phillips, 109 

P.2d 344 (CaL l94B, which involved the disbarment of an attorney, stated: 

The power of the wurt to reward a convicted defendant who 

satisfactorfly completes his period of probation by setting aside the 

verdict and dismissing the action operates to mitigate hi 

pm&hment by restoring certain rights and removing certain 

dieabnities. But it cannot be assumed that the legislature intended 

that such action by the trial court under section 1203.4 should be 

considered as obliterating the fact that the defendant had been 

findly adjudged guilty of a crime. This is made clear by the 

provfsion that the fact of the defendant’s conviction can be used 

p. 474 
Honorable Ben Z. Grant - Page Three (m:14S) 

against him in any later prosecution, despite dismissal of the action 

under .seation 1203.4. In brief, action in mitigation of the 

defendant% punishment should not affect the fact that his guilt has, 

been fiiy determined according to law. Such 4 final 

determination of guilt is the basis for the order of disbarment in 

this case. That final juc@ment of conviction is a fact: and its 

effect cannot be nullified for the purpose here involved, either by 

the order of probation or by the later order dismissing the action 

after judgment. 

206 P.2d, at 1087. 

Likewise, in 4 Co eland v. De 50 CaL Rptr. 

452 (Cal. Dist. Ct. App. 19661, the court said that 

. . . the disciplining of licensees . . . is for the protection’of the 

public in the exercise of the police power and not .for the purpose 

of punishing any licensees. . . . It is settled that proceedings to 

suspend or revoke business or professional licenses ara not included 

among tha penalties and disabilities that are released by a dismfssal 

pursuant to saation 1203.4. 

50 CaL Rptr., at 453. Thus, it is our opinion that an individual’s release “from all 

penalties and disabilitie@ under section 7 of article 42.12, Code of Criminal Procedure, is 

not effective to prevent the Commission on Law Enforcement Officer Standards and 

Education from revoking his certification as a peace officer. 

SUMMARY 

An individual% release from “all penaDies and disabilities” under 

section 7 of article 42.12, Texas Code of Criminal Procedure, is not 

effeative to prohibit the Commission on Law Enforcement Officer 

Standards and Education from revoking his certification as a peace 

officer. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

P- 475 
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Honorable Ben Z. Grant - Page Four (NW-148) 

Prepared by Rick Gil@ 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairmen 

Gerald Carruth 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

p. 476