                                April   18, 1975


The Honorable   Dolph Briscoe                       Opinion No.      H-   587
Governor of Texas
State Capitol Building                              Re:    Difference    between
Austin, Texas 78711                                        “pardon” and “restora-
                                                           tion of citizenship”    under
                                                           article 42.12,    section 24.
Dear Governor   Briscoe:                                   Code of Criminal Procedure.

    You request our opinion as to the distinction,         if any,   between a “pardon”
and “restoration to citizenship. I’ Article 42.12,        section    24, Texas Code of
Criminal Procedure,    provides as follows:

            Whenever any prisoner serving an indeterminate
        sentence, as provided by law, shall have served for
        twelve months on parole in a manner acceptable      to
        the Board, it shall review the prisoner’s   record and
        make a determination    whether to recommend    to the
        Governor that the, prisoner bepardoned    and finally
        discharged from the sentence under which he is serving.

            When any prisoner    who has been paroled has
        complied ~5th the rules and conditions governing his
        parole until the end of the term to which he was
        sentenced,   and without a revocation  of his parole,
        the Board BhalI report such fact to the Governor prior
        to the issuance of the final order of discharge,    together
        with its recommendations    as to whether the prisoner
        should be restored to citizenship.    (Emphasis added).

    In your letter, you indicate that the Texas Board of Pardons and Paroles
forwards cases to you with the recommendation       that some individuals be
granted a “full pardon” and that some be restored to “full rights of citizenship
only. ” You ask, “what rights are restored     by the grant of a ‘full pardon’ and
what rights are restored by a ‘restoration   of full rights of citizenship’ only. ”




                                        p.   2619
The Honorable           Dolph Briscoe,   page 2     (H-587)




     Conviction for a felony in Texas carries with it, besides a judicially
determined    punishment,   a deprivation of certain rights of citizenship.     Tex.
Const. art.    16, sec. 2; Election Code, arts. 1.05 (holding office) and 5.01
(voting): art. 2133, V. 1. C.S.    (serving on trial juries): Code Crim.    Proc.,
arts. 19.08,    35.12, 35.16 (serving on grand and petit juries);    Additionally,
conviction of a felony (and in some cases,      a certain type of misdemeanor)     bars
entry into and continuance in a great number of businesses        and professions.
See e&,          art. 311, V. T.C.S.     (the practice of law): art. 581-14, V. T. C.S.
(security       dealer or salesman);      and art. 845la.  V. T. C. S. (cosmetology).

    The Governor has been granted the power to pardon convicted felons
on the recommendation    of the Board of Pardons and Paroles.       Tex. Const.
art. 4, sec. 11; Code Crim.    Proc. art. 48.01.    As early as 1881 and as
recently as 1973, Texas courts have attempted to describe       the legal effects
of a pardon.   Rivers v. State, 10 Tex.Crim.     177. 182 (1881). quoting section
762 of 1 Bishop Criminal   Law (4th ea..), stated:

            The effect of a full pardon is to absolve the party
            from all the legal consequences    of his crime and
            of his conviction,  direct and collateral,   including
            the punishment,    whether of imprisonment.      pecu-
            niary penalty,   or whatever else the law has pro-
            vided.

    But there are limitations   to the effect of a pardon.  In Jones v. State,
147 S. W. 2d 508 (Tex. Crim.   App. 1941), the court overruled its prior holdings
and held that a pardon does not negate the fact that a crime was committed
and therefore,   the prior pardoned conviction may be used for enhancement
purposes.    The court explained:

            He [executive]    can pardon, but, ‘as the very essence
            of a pardon is forgiveness       or remission    of penalty,
            a pardon implies guilt; it does not obliterate the fact
            of the commission      of the crime and the conviction
            therefor;  it does not wash out the moral stain.         As
            has been tersely said,      “it involves  forgiveness   and
            not forgetfulness.   ‘I ’

            .   .   .




                                            p.   2620
The Honorable         Dolph Briscoe,   page 3     (H-587)




       In our state, as in the other states of the Union,
       the executive is not given appellate jurisdiction
       over the acts of the judicial branch of the govern-
       ment, and without which he can have no power to
       destroy its judgments and decrees.     He must take
       them as he finds them.

        .   .   .


        The Governor can forgive the penalty,    but he has no
        power to direct that the courts shall forget either
        the crime or the conviction.   The. pages written by
        the court’s decree are in the minutes still.

    In Logan v. State, 448 S. W. 2d 462, 464 (1970). the Court of Criminal
Appeals elucidated its pronouncement    inJones,  by observing that a prior
conviction could not be used to enhance where:

        . . . the pardon was predicated upon a finding by
        tbe executive department.     . . that appellant was
        not guilty of the offense for which he was convicted
        . . . (because) there would be no offense . . .
        (however) . . . .

                    ’ [a] pardon for any other reason than
                      the subsequent proof of innocence does
                      not obliterate the defendant’s previous
                      transgressions   . . .’

     The word “pardon!’ when not otherwise qualified by “conditional”    or
“partial” and the term “full pardon” are one and the same so far as their
legal effect is concerned,   unless the pardon is granted because .thk prisoner
is not guilty of the offense for which he was convicted.   Carr v. State; I9
Tex. Crim. 635, at 663 (1885).

     A pardon restores   all civil rights lost because of the pardoned conviction
--suffrage,  holding office,   and competency     as a juror.   Easterwood     v. State,
31 S. W. 294 (Grim. App. 1895) held that a pardoned felon may sit as a juro:
and vote in the elections.     Even though there are no cases whicb~ specifically
hold that a pardon by the Governor      restores   the right to ~hold office, the 1967
amendment to article 1.05 of the Election        Code couches its-rest.riction    against
felons in terms of voting disabilities,     and therefore   those cases holding that a


                                          p.    2621
The Honorable   Dolph Briscoe,    page 4     (H-587)




felon is restored his voting rights by a “full pardon” apparently are also
authority for the proposition  that a felon is restored his right to seek and
hold office.   Attorney General Opinion M-1184      (1972) held that under
article 780 of the 1925 Code of Criminal    Procedure    and section 7 of
article 42.12 of the 1965 Code of Criminal Procedure,       a convicted felon
may have his rights of citizenship   restored.    Once these rights are restored,
the person is eligible to hold office.

    Article 6252-25,   V. T. C. S., provides for compensation   to persons
wrongfully convicted who secure a pardon, and who prove by a preponderance
of the evidence that they are not guilty of the crime for which they were con-
victed.  A restoration   of civil rights alone may not satisfy the terms of said
article.

     A pardon or restoration      of citizenship  will not automatically restore
collateral  privllegee   associated    with a license to engage in certain businesses
or professions,     but either may open the door to reinstatement.       Hankamer v.
Terndin, 187 S. W. 2d 549 (Tex. Sup. 1945).

    Restoration  of civil rights has not been defined in case law and appears
only in section 24 of article 42.12,   as stated above.  See Code Grim.      Proc.
art. 48.01, et seq. Section 24 applies only to prisoneyon       parole or who
have completed their paroles.     By the terms of the statute, for those prisoners
who are still serving on parole,    the Board may “recommend       to the Governor
that the prisoner be pardoned;” for those prisoners     who have completed their
parole,  the Board may recommend       that the prisoner be “restored    to citizen-
ship. ”

     However,  the Governor has the constitutional power to grant a pardon to
a paroled prisoner who has completed his parole,      despite the language in
section 24.   Tex.Const.  art. 4, section 11; Code Crim.     Proc.,  art. 48.01;
State ex rel Smith v. Blackwell,    500 S. W. 2d 97 (Crim. App. 1973); Hunnicutt
v. State, 18 Tex.Crim.   498 (1885).

     There is no indication in section 24 of a difference between the recommendation
of pardon or restoration   of citizenship other than the status of the paroled
prisoner to which they apply.

     In view of the absence of express language in the pardon so stating,  Texas does
not ascribe a sense of moral   forgiveness  to a pardon; therefore, a pardon and
restoration of citizenship reinstate the same rights under section 24 of article
42.12 of the Code of Criminal    Procedure.   -See, Logan v. State, supra: Jones v*
State, supra.

                                      p.   2622
The Honorable   Dolph Briscoe,     page 5        (H-587)




                          SUMMARY

             For tbe purposes of article 42.12,  section 24,
        Code of Criminal Procedure,     there is no difference
        in the rights reinstated by a pardon or a restoration
        to citizenship.

            A restoration  to citizenship might not satisfy
        the terms of article 6252-25,    V. T. C. S., which
        require a pardon and a proof of innocence for an
        award of compensation     to a wrongfully convicted
        person.

                                             Very truly yours,




                                             Attorney   General   of Texas

APPROVED:




DAVID   M.   KENDALL,    First   Assistant




C. ROBERT HEATH,        Chairman
Opinion Committee




                                       p.    2623
