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                         The Attorney               General of Texas
                                           March    17,    1980
4ARK WHITE
dtorney General


                     Honorable Ben 2. Grant, Chairman             Opinion No. Mw-148
                     House Judiciary Committee
                     State Capitol                                Re: Whether a person who has
                     Austin, Texas                                successfully    completed     felony
                                                                  probation is eligible to be a peace
                                                                  officer.

                     Dear Representative   Grant:

                           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 certifica-
                                tion 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




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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 disqualifica-
    tion 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 4Co 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




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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




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