         TJIXE    L~TNBRNEY          GICNETERAL
                      OFTEXAS




Honorable Homer A. Davis       Opinion No.   M-1184
County Attorney
P. 0. Box 1110                 Re:   Whether one who was convicted
316 Denrock Avenue                   of a felony, given a suspended
Dalhart, Texas 79022                 sentence, and had the cause
                                     against him later dismissed
                                     is eligible to be certified
                                     as a political party nominee
                                     in a general election, pursuant
                                     to Article 700 of the 1925
                                     Texas Code of Criminal Proce-
Dear Mr. Davis:                      dure.

          your letter requesting the opinion of this office con-
cerning the referenced matter states, in part, as follows:

         "We have a candidate for County Commissioner,
    a Mr. Malcolm Bryant, who has previously been con-
    victed of a felony.

          "I have enclosed herewith, for your considera-
    tion, the Judgment Plea of Guilty Before Court,
    dated June 9, 1961; Sentence Suspended, dated June
    9, 1961; Recognizance on Suspension of Sentence;
    Motion for New Trial and Dismissal of the Cause,
    dated April 14, 1964; together with the Order Grant-
    ing New Trial and Dismissing Cause, dated April 14,
    1964, and ask that you please return them to me.

          "The Election Code provides that, at the
    General Election, the Judge of the County Court
    shall certify those elected officers that are eli-
    gible to serve. My question is, assuming that Nr.
    Malcolm.Bryant should be elected County Commissioner,
    would he be qualified to serve? . . . ."

          Section 1 of Article VI of the Constitution of Texas
reads as follows:

          "The following classes of persons shall not
     be allowed to vote in this State, to wit:

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Hon. Homer   A. Davis,   page 2     (M-1184)



             "First: Persons under twenty-one (21) years
             of age.
             "Second: Idiots and lunatics.
             "Third: All paupers supported by any county.
             "Fourth: All persons convicted of any felony,
             subject to such exceptions as the Legislature
             may make."  (Hmphasis added.)

          Section 2 of Article XVI of the Constitution of Texas
reads, in pertinent part, as follows:

          "Laws shall be made to exclude from office,
     serving on juries, and from the right of suffrage,
     those who may have been or shall hereafter be con-
     victed of bribery, perjury, forgery, or other high
     crimes. . . ."

             Article 1.05, Texas Election Code, provides that:

          "No person shall be eligible to be a candidate
     for, or to be elected or appointed to, any public
     office in this state unless he is a citizen of the
     United States eligible to hold such office under
     the Constitution and laws of this state and is under
     none of the disabilities for voting which are stated
     in Article VI, Section 1 of the Constitutioq of Texas
     . . . .II

             Article 5.01, Texas Election Code, provides that:

          "The following classes of persons shall not be
     allowed to vote in this state:
             II
              . . . .

          "4 . All persons convicted of any felony except
     those restored to full citizenship and right of
     suffrage or pardoned."

          The materials submitted with your letter conclusively
show that the individual involved in your request was convicted
of the offense of assault with intent to rape, a felony. The
materials also show that he was given a two year suspended
sentence, as allowed by Article 780 of the 1925 Code of Criminal
Procedure. After fully serving his sentence, this individual
then moved for a new trial and obtained an order dismissing the
charge against him, as also provided for in Article 780.

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Hon. Homer A. Davis, page 3       (M-1184)



          Former Article 780 (now codified as Section 7 of Article
42.12 of the 1965 Texas Code of Criminal Procedure) provided as
follows:

          "In any case of suspended sentence, at any time
    after the expiration of the time assessed as punish-
    ment by the jury, the defendant may make his written
    sworn motion for a new trial and dismissal of such
    case, stating therein that since such former trial
    and conviction he has not been convicted of any felony,
    which motion shall be heard by the court  during the
    first term time after same is filed. If it appears
    to the court, upon such hearing, that the defendant
    has not been convicted of any other felony, the court
    shall enter an order reciting the fact, and shall
    grant the defendant a new trial and shall then dis-
    miss said cause. After the setting aside and dis-
    missal of any judgment of conviction as herein pro-
    vided for, the fact of such conviction shall not be
    shown or insuired into for any purpose except rn
    cases where the defendant has been aaain indicted
    for a felony and invokes the benefit-of this law."
     (Emphasis added.)

          It is apposite to note that Section 7 of Article 42.12,
Texas Code of Criminal Procedure, the successor to Article 780,
provides that a defendant "shall thereafter be released from all
penalties and disabilities resulting from the offense orcrime
of which he has been convicted or to which he has pleaded guilty."

          We now turn to the question of whether the underscored
portion of Article 780, supra, constitutes an exception to the
prohibition of Section 1 of Article VI of the Constitution of
Texas.

          It is axiomatic that constitutional and statutorv
provisions which restrict the right to hold public office should
be strictly construed against ineligibility.  Hall v. Baum, 452
S.W.2d 699, 702 (Tex.Sup. 1970); Willis v. Potts, 377 S.W.2d 622,
623 (Tex.Sup. 1964).

          Attorney General's Opinion No. O-2698 (1940) held that
a person who had been convicted of burglary, and was given a two-
year suspended sentence, could not hold the office of justice of
the peace. However, at the time the individual in that Opinion
sought elective office, his suspended sentence was still in force
and effect; such is not the case with the individual involved in


                              ' -5779-
Hon. Homer A. Davis, page 4     (M-1184)



the instant request.   See, also, Attorney General's Opinion No.
0-4121 (1941).

          Attorney General's Opinion No. V-278 (1947) held that
an individual was ineligible to serve as a school district trustee
after he had been convicted of a felony and served his sentence,
but had not had the disabilities attendant to his conviction re-
moved.

          Attorney General's Opinion No. M-640 (1970) construed
Section 7 of Article 42.12 and held that when a court dismissed
the charge against a person who had successfully completed his
probated sentence such person was thereby released from all civil
penalties and disabilities incurred by his conviction. Said
Opinion also specifically held that such a person might serve on
a jury and vote, but made no mention of the question of holding
office.

          Attorney General's Opinion No. M-795  (1971)'held that
once the indictment against a defendant was dismissed, pursuant      1
to Section 7 of Article 42.12, a voter registration certificate
could be issued to him.

          In view of the foregoing, we hold that the Legislature,
in enacting Article 780 of the 1925 Code of Criminal Procedure,
and Section 7 of Article 42.12 of the 1965 Code of Criminal
Procedure, established a constitutionally sanctioned exception
to the proscription of a convicted felon's holding office as pro-
vided for in Section 1 of Article VI of the Constitution of Texas.

          The facts related in your letter clearly show that the
felony charge against the individual in question has been.dropped,
pursuant to Article 780, and that his suspended sentence is no
longer in force.

          You are therefore advised that the county judge may
legally certify Mr. Malcolm Bryant as a candidate for county
commissioner in the general election to be held on November 7,
1972.

                          SUMMARY

          Article 780 of the 1925 Code of Criminal Pro-
     cedure and Section 7 of Article 42.12 of the 1965
     Texas Code of Criminal Procedure established a proce-
     dure whereby the disabilities attendant to a felony


                              -5780-
    Hon. Homer A. Davis, page 5       (M-1184)



         conviction may later be removed. Pursuant to
         said statutes, one convicted of a felony may later
         have his rights of citizenship restored. Once
         these rights are restored, the person is eligible
         to hold office.

                                                 truly yours,



                                                     C. MARTIN


    Prepared by Austin C. Bray, Jr.
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE
              .'
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Roger Tyler
    Jay Floyd
    Gordon Cass
    John Banks

    SAMUEL D. MCDANIEL
    Staff Legal Assistant
/   ALFRED WALKER
    Executive Assistant

    NOLA WHITE
    First Assistant




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