                         December 9, 1966

Honorable Coke R. Stevenson, Jr.   Opinion No. c-787
Administrator
Texas Liquor Control Board         Re:   Whether the terms “con-
Austin, Texa.s                           victed”R “conviction”,
                                         or “finally convicted”
                                         as used in the cited pro-
                                         visions of the Texas
                                         Liquor Control Act, mean
                                         and include a conviction
                                         where the sentence is pro-
                                         bated under the terms of
                                         Art. 42.12 or Art. 42.13
                                         of the Code gf Criminal
Dear Mr. Stevenson:                      Procedure.
      Your letter requesting an opinion of this office reads
as follows:
           “Section 11, (1) of Article I of the
        Texas Liquor Control Act provides as fol-
        lows:
              ‘Section 11. The Board or Ad-
           ministrator may refuse to issue a
           permit . . . to any applicant . . .
           if it has rea.sonablegrounds to be-
           lieve and finds any of the following
           to be true: (1). That the a.pplicant
           has been convicted in a court of compe-
           tent jurisdiction for a violation of
           any provision of this Act during the
           two (2) years next preceding the filing
           of his application, or that two (2)
           years hasnot elapsed since the termi-
           nation of any sentence, by pardon-or
           otherwise, imposed upon the applicant
           upon conviction for a felony. . . .’
           “Section 12, (1), (24) and (29) of Ar-
        ticle I of the Texas Liquor Control Act
        provides as follows:
Honorable Coke R. Stevenson, Jr., Page 2 (c-787)


               'Section 12. The Board or Ad-
            ministrator may cancel , . . any
            permit . , . if it is found that
            any of the following is true: (1).
            That the permittee has at any time
            been convicted for a violation of
            an provision'of this Act.
            (21). That the permittee his-been
            finally convicted of a felony during
            the'period he'is-the holder of any
            permit or renewal thereof. .
            (29)l
                   In addition to the cause:
            for cancellation or suspension here-
            inbefore set out, the Board or Ad-
            ministrator may cancel or suspend the
            permit of any person upon satisfactory
            proof that the permittee has been
            finally convicted of any penal provi-
            sion of this Act, . . .'
            'Section 17, (30) of Article I of the
         Texas Liquor Control Act provides as folr
         lows:
               lSection 17. ... (30) If any
            person, while holding a permit, shall
            be finally convicted of a felony, the
            Board'or Administrator may cancel any
            permits held by such person upon sat:
            isfactory proof of such conviction.
            . . .I
            "Section 5, 2 (f) of Article II of the
         Texas Liquor Control Act provides as fol-
         lows:
               'Section 5. ... The County Judge
            shall refuse to approve the application
            for such license if he has reasonable
            grounds to believe and finds any of the
            following to be true: . . . 2. If a
            Distributor or Retailer: . . . (f).
            That the applicant has been final1
            convicted of a felony duringd0
            72) years next preceding the filing
            of his application; , . .I


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Honorable Coke R. Stevenson, Jr., Page 3 (c-787)



           "Section 5; 3, (a) and (b) of Article
        II of the Texas Liquor Control Act PPQ-
        vides as follows:

              'Section 5.   ... 3. The County
           Judge may refuse to issue a Distribu-
           tor's or Retailer's license to any
           applicant if he has reasonable grounds
           to believe and finds any of the fol-
           lowing to be true: (a), That the ap-
           plicant has been final1 convicted in
           a court of competen
                             W+i%dicwfor
           the violation of any -revision of this
           Act during the two (2P years next
           preceding the filin of his application;
           or, (b). That two 72) years has not
           elapsed since the termination, by pardon
           or otherwise, of any sentence imposed
           upon conviction for a felony; . . .'
           "Section 19, A, (25) and (29) of
        Article II of the Texas Liquor Control
        Act provides as follows:
              lSection 19: The Board or Ad-
           ministrator may cancel , . . , any
           license .       upon finding that
           the 1icensee'hLs: A. If a Retail
           Dealer's Off-Premise License or a
           Retail Dealer's On-Premise License:
                 (25).  Has been fi,nallycon-
           ;icthd of a felony during the period
           he is the holder of any license or
           any renewal thereof: .-. . (29). Ras
           been finally convicted for the'vio-
           lation of any penal provisions of
           this Act; . ; ;'
           "Section 19, B, (1.6) and (17) of
        Article II of the Texas Liquor Control
        Act provides as follows:
              'Section lg. The Board or Ad-
           ministrator may cancel , . , , any
           license o      , upon finding that the
           licensee hasi B. If a General Dis-
           tributorls License, Local Distributor's
           License or a Branch Distributor's Li-
           cense: . . . (16).   Has been finally
                          -3776-
Honorable Coke R, Stevenson, Jr., Page 4 (c-787)


           convicted of a felony during the period
           he’$s the holder of any Jicense or any
           rendwal thereof; or (17). Has been
           finally convicted for the violation of
           any penal provisions of this Act. . , .*
           “Our question is do the terms ‘convicted,’
        *conviction,* or ‘finally convicted’ as used
        in the above quoted provisions of the Texas
        Liquor Control Act mean and include a convic-
        tion where the sentence is proba.tedunder
        the terms of Article &2,.12or Article 42.13
        of the Code of Criminal Procedure of the State
        of Texa.s?”
      Article 42.12, Vernon’s Code of Criminal Procedure,
authorizes, under certain circumstances, the suspen$ion of
sentence and placing on probation of a defendant convicted
of a felony. Article 42.12, A, Section l(b), defines “pro-
bation” as follows:
            “b . *Probation* shall mean the release
         of a convicted defendant by a court under
         conditions imposed by the court for a speci-
         fied period during which the imposition of
         sentence is suspended; . . .”
      Article 42.12 B, Section 3, provides as follows:
           “Sec. 3. The judges of the courts of
        the State of Texas having original juris-
        diction of criminal.actions, when it shall
        appear to the satisfaction of the court
        that the ends of justice and the best in-
        terests of the public as well as the defen-
        dant will be subserved thereby, shall have
        the power, after conviction or a plea of
        guilty for any crime or offense, where the
        maximum punishment assessed against the de-
        fendant does not exceed ten years imprison-
        ment, to suspend the imposition of the sen-
        tence and may place the defenda.nton proba-
        tion or impose a fine applicable to the of-
        fense committed and also place the defendant
        on probation as hereinafter provided, Any
        such person placed on probation, whether in
        a trial by jury or before the uourt, sh:ll
        be under the supervision of such court.
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Honorable Coke R.-Stevenson, Jr., Page 5 (C-787)


     Section 7 of Article 42.12 provides:

           "At any time, after the defendant has
        satisfactorily completed one&third of the
        original probationary period or two-years
        of probation, whichever is the lesser, the
        period of probation may be reduced or termi-
        nated by the court. Upon the satisfactory
        fulfillment .of the conditions of probation,
        and the expiration of the period of proba.+
        tion, the court, by order duly entered, shall
        amend or modify the original sentence in-
        posed,.if necessa.ry,to conform to the pro-
        bation period and shall discharge the defen-
        d.ant. In ca.sethe defendant has been con-
        victed 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 defenda.ntto withdraw his plea, and
        shall dismiss the accusation, complaint, in-
        formation or indictment aga,instsuch defen-
        dant, who shall thereafter be released from
        all p.enaltiesand disabilities resulting
        from the .offense OP crime of which he has
        been convicted or to which he has pleaded
        guilty, except that proof of his said con-
        viction or plea of guilty,shall be made
        known to the court should the defendant
        again be convicted of any criminal offense,"
     Section 8 of Article 42.12 provides in part:
           "At any time during the,period of pro-
        bation ,the court may issue a warra.ntfor
        violation of any of the conditions of the
        probation and cause the defendant to be ar-
        rested. Any probation officer, police of-
        ficer or-other officer with power of arrest
        may arrest such defendant without a warrant
        upon the order of the judge of such court
        to be noted on the docket of the court, A
        proba.tionerso arrested.may be detained in
        the county 'jailor other appropriate~plaee
        of detention until he ca.nbe taken before
        the court. Such.officer shall forthwith
        report such arrest and detention to such
        court. Thereupon, the‘courk shall cause the

                         -3778-
                                  Page 6 (C-787)
Honorable Coke R. Stevenson, 973).#


         defendant to be brought before it and after
         a hea.ringwithout a jury, may either con-
         tinue or revoke the probation and, if proba-
         tion is revoked, shall proceed to dispose of
         the case a.5if there had been no probation.”
      St Q3 apparent, from a reading of Sections 7 and 8 cited
immediately a.bove,that the framers of the Adult ProbatrlonLaw
did not intend that a conviction be final,where the sentence
is probated unless a.nduntil the probation is revoked,
     .Anal,ysisof the Texas Liquor Act indScates qhnt the Legis-
lature used the word.s“convicted,” “oonvPctzl,on”
                                                and “TinaUg
convicted” interchangeably and did not intend to attach a sepa-
rate or distinct legal meaning to the use of any one of the
words.
      This opinion will not address itself to the question
presented by ArtLcle X, Section l%(2) and ArtI.cleXI, Section
5, 3(b) since these provls$ons are not pertinent to your ques-
tion as it would not arise under the terms of Article 42.12
or Article 42.13 of Vernon’s Code of Crlm3,nalProcedure.
      Therefore, it is the opinion of this offlce that since
the words “convicted,” “conv$ctZon” and “finally Qonvicted”
as used Pn the Texas Liquor Control Act refer to a FInal,con*
victlon, there is no a.utomaticsuspension of 8 liquor license
when there is a conviction and the sentence $s probated under
the terms of Article k2,12 unless and unt;Llthe probation is
revoked and the court enters judgment on the f$ndlng of guilty
in aucordance with the terms of Article 42.12, Seotioa 8.
      Article 42.13, Vernon’s Code of Criminal Procedure,
governs the placing of a defendant on proba.tionin a mtsde-
meanor case. Section 4 of said Article provides:
           “Sec. 4. (a.) When a.defendant is
        granted probation under the terms of this
        Act, the finddng of guilt does not become
        final, nor may the court render judgment
        thereon, except as provided in SectI.on6
        of this Article,
           “(b) The .court shall record the fact
        a.nddate that probation was granted on the
        docket sheet or in the minutes of the court.
        The court shall also note the period and
        terms of the probation, and the details of the
        Honorable Coke .R. Stevenson; ,Jr., Page’7 (C-787)


                 judgment. The court’s records may not re-
                 flect a final~conviution, however, unless
                 probation is later revoked in accordanoe
                 with ‘Section6 of this Artidle,”
              Article 42.13, Section 6, provides:
!d
1W                  “Sec. 6.  (a) If -8 probationer vio-
                 lates a.nyterm of his-probation, the court
                 may ca.usehis arrest by warrant a.8in other
                 cases. The proba.tionerupon arrest shall be
:is-             brought promptly before the court causing
                 his arrest and the court, upon motion of.the
)a-             ,,.state..and,
                           after a hea.ringwithout a jury, may
                 continue,’modify, or revoke the probation as
                 the evidence warrants.
    \
                    “(b) On the date the probation is rev
I                voked, the finding of guilty becomes final
I-               and the.court sha.11render judgment thereon
                 against the defendant. The judgment shall
                 be enforced as in other oases and the time
                 served on probation may not be credited or
                 otherwise considered for any.purpose.”
              Since Article 42.13 makes no reference W‘the suapen-
        sion of sentence in misdemeanor cases when probation has
t       been granted, and furthermore, since Section 4 of said Ar-
        ticle precludes the court from eveh entering .judgment‘upon
Y       a finding of guilty except in the event probation is revoked
        as provided in Section 6 of that Article, it is the opinion
        of this office that the words “convicted,” “conviction,” and
        “finally convicted” as used in the Texas Liquor Con&o1 Act
        do not include a conviction where the defendant is placed on
        probation after being found guilty of a misdemeanor offense
        unless and until the probation is revoked as provided in
        Article 42.13, Section 6, Vernon’s Code of Criminal Proce-
        dure.
                                 SUMMARY
                    It is the opinion of this office that the
                 terms “convicted,” nconviction,f’or “finally
                 convicted” as used in the Texa.sLiquor Control
                 Act do not include a conviction where the qen-
                 tence is probated under the terms of Article


                                  -3780-
Honorable Coke R. Stevenson, Jr.,     Page 8 (C-787)


           42.12, V.C.C.P. (felony convictibn), or
           Article 42.13, V.C.C.P. (misdemeanor eon-
           vi&ion), unless and until probation is
           revoked and the court enters judgment on
           the finding of guilty,
                                        Yours very truly,
                                        WAGGC%@R CARR
                                        Attorney General of Texas




DHC/dt
APPROVED
QPDmN    uommTEE:
Howard M. Fender, Chairman
Sam L. Kelley
Robert E. Owen
Lonny F. Zwiener
APPROVED FOR THE ATTORNEY GENERAL
By T. B. Wright




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