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# The Attorney General of Texas

4ARKWHITE dtorneyGeneral 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 ofarticle 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 bythe Commission [on Law Enforcement Officer Standards and Educationl asqualified to beapeace officer.

... (b)Final conviction of a felony under the laws ofthis 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 ofaperson 80convicted. Section 7ofarticle 42.12,Texas Code ofCriminal Procedure provides:

. . . In case the defendant has been convicted emhss entered aplea of guilty or aplea 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

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

conviction orplea ofguilty shall be made known to the court should the defendant again be convicted ofany criminal offense. (Emphasis added). You ask whether a person’s release “from all penalties and disabilities” iseffective to prevent the commission from revoking his certification as apeace officer. Seew 557S.W.%d363(Tex. Civ. App.- Austin 1977,no writ). Section ‘Iprovides that, where the verdict against a convicted defendant hes been set aside bythe court, or his plea of guilty has been withdrawn, he is thereafter released from aB penalties and disabilities which attach to the conviction, except that proof of conviction shall be ma& known to any court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 onjuries. 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 h the convicted defendant, rather than to remove all evidence of the conviction.
“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 ofaperson previously certified, and requires the commission to “immediately revoke the certification of a person so convicted.” & Cooper v. Texas Board of Medical Examiners, 489S.W.2d 129,132 (Tex. Civ. App.- ElPaso 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. ~lnMeyer v. Board of Medical Bxaminsrs, 298 P.2d 1085 (Cal. 19491,the California Supreme Court construed sectmn 1203.4of 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(CaLl94B, which involved the disbarment of an attorney, stated:

The power of the wurt to reward a convicted defendant who satisfactorfly completes hisperiod ofprobation bysetting 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. 474Honorable BenZ.Grant - Page Three (m:14S)
against him inany 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. 206P.2d, at 1087. Likewise, in Co eland v. De

4 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 orrevoke business orprofessional 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 7of 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 asapeace officer. SUMMARY An individual% release from “all penaDies and disabilities” under section 7of 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TED L.HARTLEY Executive Assistant Attorney General

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Prepared byRick Gil@ Assistant Attorney General APPROVED: OPINION COMMITTEE C.Robert Heath, Chairmen Gerald Carruth Susan Garrison Rick Gilpin Bruce Youngblood

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