Mr. Henry B. Keene Opinion No. m-797
chairman
Board of Pardons and Paroles Re: Whether a full pardon is equiv-
P. 0. Box 13401 alent to a restoration of citizen-
Capitol Station ship under section 24 of article
Austin, Texas 78711 42.12, Code of Criminal Procedure
Dear Mr. Keene:
You state that the Texas Board of Pardons and Paroles is in need
of answers to the following questions in determining "whether to
change its rules, policy and practice of forwarding case recommenda-
tions to the Governor that individuals be restored to full civil
rights of citizenship only."
1. Are a full pardon and restoration of full
civil rights of citizenship synonymous as stated
in U-587 and MW-270?
2. What is the current status of H-587? Has
the Opinion been 'amended, clarified, overruled or
distinguished?
3. What effect, if any, doss. the amendment to
Section 24, Article 48.12 of the Texas Cods of
Criminal Procedure have on H-587?
You provide the following background information which prompted
the board's questions:
The Board seeks to clarify whether Attorney
General Opinion H-587 (rendered on April 18, 1975)
has been substantively changed or modified. H-587
held that there is no difference between the
rights which are reinstated by a 'pardon' and the
rights which are reinstated by a 'restoration
citizenship' under Section 24, article 42.12 of
the Texas Cods of Criminal Procedure.
In 1977, the .legislature amended Section 24,
article 42.12 of the Texas Cods of Criminal
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Mr. Henry B. Keene - Page 2 (JM-797)
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Procedure (which is now Section 17, Article 42.18)
and deleted the reference to 'restoration of
citizenship.' Another Attorney General Opinion
was initiated through the then Attorney General
Mark White. Attorney General Mark White in
Opinion No. MW-270 dated November 12, 1980,
reviewed H-587 stating in pertinent part:
It is generally recognized that a pardon is
effective to restore certain rights of
citizenship . . . . This office has previously
determined that there is no difference between
the civil rights reinstated by a 'pardon' and a
'restoration of citizenship' under article
42.12, section 24 of the Texas Code of Criminal
Procedure. See Attorney General Opinion H-587
(1975). Although section 24 of article 42.12
has been subsequently amended, and the
reference to 'restoration of citizenship' has
been deleted, we believe the legal effect of a
pardon to be synonymous with a restoration of
rights of citizenship.
Pursuant to its rules and policy, the Board can
recommend to the Governor that a prisoner be
?
granted a. full pardon and restoration of full
civil rights of citizenship or restoration of full
civil rights of citizenship a.
. . . .
Although H-587 was reviewed in MU-270, MW-270
did not adequately address and analyze the reasons
for the 'belief that.the legal effect of a pardon
is synonymous with a restoration of rights of
citizenship.'
You have furnished us with a copy of the relevant portions of the
Rules of the Texas Board of Pardons and Paroles. Under its rule 143.2
C.002) I "if the Board determines not to recommend to the Governor that
the prisoner be pardoned, it may recommend to the Governor that the
prisoner be restored to the full rights of citizenship."
Section 11 of article 4 of the Texas Constitution provides:
In all criminal cases, except treason and
impeachment, the Governor shall have power, after
conviction, on the written signed recommendation
and advice of the Board of Pardons and Paroles, or
a majority thereof, to grant reprieves and
commutations of punishment and pardons. . . .
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Mr. Renry B. Keene - Page 3 (JM-797)
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P
By Acts 1965, 59th Leg., ch. 722, at 317. the Legislature carries
forward in article 48.01 of the Texas Code of Criminal Procedure the
exact wording quoted above from the constitution.
Prior to the 1977 amendment, section 24 of article 42.12
provided:
Sec. 24. 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 be pardoned and finally discharged from
the sentence under which he is serving.
When any prisoner who has been paroled has
complied with 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 shall report such fact to the
Governor prior to the issuance of the final order
of discharge, together with its recommendation as
to whether the prisoner should be restored to
P citizenship. .
As amended by the acts of the 65th Legislature, section 24
stated:
Sec. 24. When any prisoner who has been
paroled or released to mandatory supervision has
complied with the rules and conditions governing
his release until the end of the term to which he
was sentenced, and without a revocation of his
parole or mandatory supervision, the Board shall
make a final order of discharge and issue the
prisoner a certificate of discharge.
In 1985, section 24 was repealed and recodified as article 42.18.
section 17 of the Texas Code of Criminal Procedure. See Acts 1985,
69th Leg., ch. 427. §§l and 2, at 1531, 1548 and 1554. -
The amendment removed the provision r,elative to the board
recommending restoration of citizenship and pardon to the governor.
Under the amendment, the board has authority upon certain conditions
having been met by the prisoner to "make a final order of discharge
and issue the prisoner a certificate of discharge." As heretofore
noted, section 11 of article IV of the Texas Constitution and article
48.01 of the Texas Code of Criminal Procedure authorize the governor,
on the written advice and recommendation of the Board of Pardons and
Paroles, to grant a pardon.
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Mr. Eenry B. Keene - Page 4 (34-797)
We have been unable to find any reference to restoration of
citizenship in the pardon and parole context in the constitution or
statutes except as it appeared in section 24 of article 42.12 prior to
the 1977 amendment. We are of the opinion that the amendment did not
affect the validity of the conclusion reached in Attorney General
Opinions H-587 and MW-270 that there is no difference between
restoration of citizenship and pardon other than the status of the
prisoner.
Attorney General Opinion H-587 cited Easterwood v. State, 31 S.W.
294 (Ct. Grim. APP. 1895). where the court rejected appellants'
complaint that the-governor'~spardon did not restoie the ci&enship
of a member of the jury who had previously been convicted of theft.
The court stated that the pardon had the effect of restoring him "to
all his civil rights" and "his right of suffrage and competency as a
juror."
In%!+270 it was pointed out that the restoration of the rights
of citizenship as a result of a pardon is not to be confused with a
franchise or privilege conferred by the stats only for merit. The
license to practice law and certification as a peace officer are given
as examples of a privilege or a franchise conferred by the stats on
the basis of merit and not as a right of citizenship. It was
concluded that a pardon, unless granted for subsequent proof of
innocence, woul'd not entitle a convicted felon to be certified as a
peace officer.
We believe the meaning given the term "pardon" in the foregoing
opinions follows the view expressed in other jurisdictions as
reflected by the following text found in 67A C.J.S. Pardon and Parole:
While a pardon has been held not to restore
political privileges, as distinguished from civil
rights, a full and unconditional pardon does
restore to the offender the customary civil rights
which ordinarily belong to a citizen. including
the right to vote, as discussed in C.J.S.
Elections 533 c, the right to serve on a jury, in
C.J.S. Juries §142, and the right to be a witness,
in C.J.S. Witnesses 568.
Id.9 $18, at 23.
Where such right has been lost by conviction of
a crime, a pardon has been held not to restore to
the convicted person the right to practice a
profession, or the right to a license which was
revoked, either finally or with provision for
reissuance on certain conditions, and a pardon
does not preclude consideration of a criminal
conviction in proceedings before a board empowered
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Mr. Henry B. Keene - Page 5 (a-f-797)
with discretion to revoke professional licenses.
A pardon which doss not remove the stigma of a
prior conviction does not authorize the grant of a
license which can be granted only to a person who
has a good reputation for honesty.
However, where the effect of a pardon is to
obliterate the conviction, a license cannot be
denied to a pardoned individual on the basis of
the conviction for which he was pardoned.
Id.. 020, at 27.
Since the 1977 amendment of article 42.12, section 24 of the
Texas Cods of Criminal Procedure (now article 42.18, section 17),
there is.no statutory provision authorizing the Board of Pardons and
Paroles to recommend to the governor the restoration of citizenship
rights for a prisoner.
SUMMARY
The terms "restoration of full rights of citi-
zenship" and "pardon" are synonymous except in
regard to the status of the prisoner. There is no
authority under the present statute for the Board
of Pardons and Paroles to recommend to the
governor that individuals be restored to full
rights of citizenship only.
VeryItruly yourII,
‘; I M MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3771
Untitled Texas Attorney General Opinion
Combined Opinion