                                ATIY)RNEY                  GENERAL
                                    OF%'EXAS



                                    February       19, 1971


Hon. Joe Remmber                                     Opinion     No. M-795           t
County Attorney
Hard6  county                                         Ror     Whether l poreon who
HOU6tOn, T6X&6                                                ha6 been convicted ot
                                                              a felony but whoae
                                                              aentenoa has been pro-
                                                              bated.may k.$laued    a
                                                              votq,regis,ft;Stion
Dear Mr.       Re6WehMl                                       certitioak.       ._.
                                                                                         .
         In your recent 0 &ion requert ddresred&:;)lii
office     you ark the~to P lowing questions

               Whether a person who hu ben convicte4 of’
         a felony but.which aentenoe.has been~ robah& auy
         be issued a voter regi8t~@tio&aertif P c&e.-,

     Article VI, Section             1, Conrtikon              of Texa$,     pioVi*des
in part as follows:

              "The following claeses of person8  Shall
         not be allowed to vote in this state,  to wit:
                l
                    .   .   .



                "Fourth:   All person8             convictei3 ot any telony,
         abject     to auah en#ptione              ar the Legirl8ture  may
         make.”                 .

      This constitutional  provision  wu   implemented by. the
tigfalature   in Article 5.01 of the tkction    Code of the
State of Texas, which provide8    in pertinent  partr

                “The following classes of persona                  shall
         not   be allowed to vote in this .&ate8
                " . . .




                                               -   5861.
Hon.   Joe   Re6weber,   page 2            (M-795)



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

      Article 42.12 of the Code of Criminal      Procedure of
Texas deals with probation     in felony ca6e6 and provides~
authority   for the 6USPending   of sentence6   and the plaoing
an probakon of defendants      convicted  of felonie~s uhdek Ce*ilih
prescribed   circumstances.    Section 7 of Article II.12
orovides:

              “Sec. 1. ht any time, after the defendant
       has sati6factorily      oompleted   one third of the
       original   probationary     period or two years of
       probation;whiohever       is the lesser,     the period.         l* I


       of probation may be reduced or terminated b the
       court.    Upon the saCirtac$ory      tultillment‘o Lb@
       conditions   of probafion,      and the expiration or
                                                                        ‘~



       the period or probation,        the court, by order
       duly entered,    sball'akumd or modity the origiirkl
       sentence imbpos8d, IS,’necessary,       to conform to :
       the probation p&rid        and shall discharg6 the.‘
       defendant.      In case the defendant      has been
       convicted   or 68 entered a’plea        of guilky or
       a plea of nolo contendere,        and the court has
       discharged    the defendant     hereunder,    euch court
       may set aside Me       verdiot or permit      the defetidant
       to withdraw his       lea, and shall ‘dismiss +he            '
       accusation,     campP aint, information or indictment
       agarn6t such defendant,       who shall there-after
       he
       --  released    from  all  penalltie6   and di6abflitieS
       resulting    from the gEos:        or crime of which he
       KXFEiFen convioted               aicn ns-nas pxeaaeo-
       guilty,.except     that proof of his maid conviction
       Crta      of guilty shall be made known to the
       court 6hould the detendant         again br convicted
       of any criminal offenee."

     It seems clear that the court rn which the conviction
was had mu6t affirmatively    take thelaction   contemplated
by Section 7 before a defendant     ie    . . . released from
all disabilitiee   reeulting   from the offense  . . . of which
he ha6 been convicted..    . .* (Empha6i6 ours)    This includes
the release L    n the disability   of not being permitted
to vote.   See Attorney   General  6 Opinion No6. M-640 (1970)
and V-278 (1947).
    Hon.   Joe Resweber, Page 3        (M-795)


         Accordingly, until the trial court sets aside the
    verdict or permits the withdrawal at the plea of guilty
    and dismisses the *acousation, complaint, information or
    indictment", tbs detendant cumot vote in Texas and a
    votes registration oertitioate  should not be issued to
    him.

         It is generally held in other states that a oon-
    viction of a felony is 6uch a "disabilityg as.would bring
    about a di6qualitication to vote. 149 A.L.R. 1075, and
    cited authorities.
                            SUMMARY

                 A voter regi6tration certificate should not
           be issued to one convicted of a felony and placed
           on probation until the court in which the con-
           viction was had has set aside the complaint,
           information or indictment as authorized by 57 ot’
           Article   42.12, Codc.6t   Criminal    Procedure of Texas.

                                                 I’’I
                                                   /I




     Prepared by Lonny F. Zwiener
c
     Assistant Attorney General
     APPROVED:
     OPINION COMMITTEE

     Kerns Ta lor, Chairman
     W. t. Al!en, Co-Chairman

     Roger Tyler
     Pat Bailey
     Bob Lattimore
     James Quick

     MRADE F. GRIFFIN
     Statf Legal AsSiStcUlt
      ALFRED WALKER
      Executive A66i6tant

     NOIA WHITE
      Fir6t   Aeairtant
                                      -3863-
