Mr. W. C. Lindsey
Criminal District Attorney
Office of Criminal District Attorney   Opinion No. M-640
Jefferson County
Beaumont, Texas                        RE: Construction of
                                           Article 42.12,
                                           Section.7, Code of
pear Mr. Lindsey:                          Criminal Procedure.
     YOU have requested the opinion of this office concerning
an interpretationof Section 7, Article 42.12, Texas Code
of Criminal Procedure. In your letter the question is set
forth as follows8
                              .~
        *Under CCP Article 42.12..Section7 which
     states '. . . who shall thereafterbe re-
     leased from al'l.
                     penalties and disabilit<es
     resulting from the offense or crime of whrch
     he has been convicted or to which he has
     pleaded guilty, except that proof of hi
     said conviction or plea of guilty shallSbe
     made known to the Court should the defendant
     again be convicted of any criminal offense'.
      (Emphasisadded.)
        'Can such a person after judgment of
     convictionhas been set aside state truth-
     fully therefore that he has never been con-
     victed of a felony? Would he therefore  be
     eligible to serve on a jury, vote and state
     in an application of employment that he had
     never been convicted of a felony?"         ..
     The first portion of the sentence in Section 7 (from
which you have quoted the last portion) states:




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Ur. W. C. Lindsey, page 2, (M- 640 )



        "In case the defendanthas been convicted
     or has 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 his plea, and shall dismiss the
     accusation, complaint, informationor indict-
     ment against such defendant . . .*
     Since the statute specificallyprovides that the
court shall set aside the verdict or permit the defendant
to withdraw his plea dnd shall dismiss the accusation,
complaint, informationor indictment in addition to specifi-
cally releasing the person from all penalties and disabil-
ities, it is our opinion that such person may serve on a
jury or vote at an election provided that he is otherwise
qualified. These are civil rights which the statute seeks
to restore to such defendant.
     However, in view of the fact that the statute there-
after goes on to declare that '. . . proof of his state
conviction . . .O (emphasisadded) and to say ". . . again
be convicted . . .m (emphasisadded), and in view of the fact
that~no provision is made for expunging the "judgmentof
convictionm from the record, the statute by its own wording
makes it clear that the "conviction"itself has not been
entirely erased. The right of such a defendant to state to
.hisprospective employer that he has never been convicted
is not dealt with in the statute. Employers.areentitled to
know the truth about their prospective employees, and this
the statute has not taken away. Such is not,a 'penalty"or
'disability*which was released by the etatute. It is,
therefore, concluded that such person cannot state in an
application of employment that he had never been "convicted
of a felony."
     we are strengthenedin our opinion by an express
statutory distinctionbetween the effects of probation under
Article 42.12, V.C.C.P. (AdultProbation Law) and under
Article 42.13, V.C.C.P. (MisdemeanorProbation Law), Article
42.13(2) defined-misdemeanor"probation" as "the release . . .
of a defendant who has been found uilt W (Emphasissupplied)
                            -7-9--y
Such a probated sentence does no   ecome a final conviction




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Hon. W. C. Lindsey, Page 3, (M-640 1


unless probation is revoked. CF. Se&. 4(a) and 6(b),
Art. 42.13. Article 42.13 further provides that when
a defendant is discharged from probation, the finding of
guilty may not thereafter "be considered for any purpose."
(Emphasissupplied by statute).
     On the other hand, Article 42.12 defines *probation"
under the Adult Probation Law as "the release of a convicted
defendant.' C.F. Section 2(2) (Emphasissupplied). W
find no language in Article 42.12 indicatingLegislative
intent that a probationer not be consideredas convicted.
Rather, it appears clear that the Legislatureintended the
effect of discharge fron ,probationbe simply to release such
persons from all penalties resulting from their convictions.
                     SUMMARY
       When a person has been discharged and the
    court has set aside the verdict or permittedhim
    to withdraw his plea and the court has dismissed
    the accusation, complaint, information,or in-
    dictment under the provisions of Section 7,
    Article 42.12, Texas Code of Criminal Procedure,
    he regains his civil rights, i.e. the right to
    vote and serve on juries if otherwise.qualified.
    Such person, however, nay not truthfully state
    that he has never been "convicted"of a felony
    in an application for employment.
                               Very truly yoursr
                                  fl



                                       General of Texas

Prepared by Howard M. Fender
Assistant Attorney General




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Hon. W. C. Lindsey, page 4, (M-640 )


APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chai2m.m
W. E. Allen, Co-Chainnan
Jay Floyd
Bob Lattimore
Brandon Bickett
Bob Darden
UEADEF. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant Attorney General




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