The Attorney General of Texas
January 12, 1982
ARK WHITE
Attorney General
I
Supcemc Cowl Buildin Honorable Harold Lerev Opinion No. Ml-422
. 0. Box 12545 Wichita County Attorney
wstin. TX. 79711 County Courthouse Re: tlcanlng of “convictlonn
c 121475.2301 Wichita Falls. Texas 76301 in section 9(b)(3) of article
Telex 91011174.1357
-&copier 512147so296
2372p-3. V.T.C.S., prior to
1981 amendment
f
1607 Main Sk. Suite 1400 Dear Mr. Lerev:
alias. TX. 75201
You have asked about the meaning of the term “conviction” as used
in section 9(b)(3) of article 2372p-3. V.T.C.S.. prior to its
r 824 Albwls Ave.. Suite 160
El Paso. TX. 79905
91515333184
amendment effective
Prior to the
October 31, 1981.
recent amendment of article 2372p-3, section 9(b)(3)
read as follows:
L 220 Osllar Ave.. Suite 202
,uston. TX. 77b2 (b) Any license may be suspended or revoked
df+OW6 by the [County Bail Bond] Board for:-
W5 Broadway. Suite 312
...
Lu~po.3~ TX. 79401
OSl747-5238 (3) o~hw$tlon under the laws of this .
0” or any state or of the federal
government of a misdemeanor Involving moral
4209 N. Tenth. Suite S
McAllen. TX. 79%
turpitude or of a felony.... (Rmphasis
512lSS24547 added).
The Sixty-seventh Legislature extensively revised article 2372p-3.
200 Main Plaza Suite 400
Section 9(b)(3) remains the same. however, except the amendment
I San Antonio. TX. 79205
SlM25-4191
changed the wording of section 9(b)(3) so that it now reads “final
conviction” instead of merely “convictlon”. Acts 1981, 67th Leg., ch.
312, 51 at 882. It is our opinion that the vord “conviction” as used
I An Equal Opporlunilyf
Affirmative AclMn Employer
in section
referred
9(b)(3)
to a “final
of article
convlction”
2372p-3 prior to the amendment thereto
and that the’ recent addition of the
word “f Inal” merely.. ‘clarified the matter; it did not work a
I substantive change.
“Final convlcclon” means
See Attorney
conviction
General Opinion
from which all rights
O-1894 (1939).
of direct
appeal have been exhausted. See Allen V. Texas Departient of Public
Safety, 411 S.W.Zd 644 (Tex. C! App. - Texarkana 1966. no wrlt).
I
p. 1437
honorable Harold Lerev - Page 2 (UW-422)
The revocation of a bail bondsman license by a county beil bond
board is judicial in nature. Travis County Bail Bond Board v. Smith.
331 S.W.Zd 236 (Tex. Civ. App. - Waco 1975. ‘no vrit). See Bcxar
County Bail Bond Board v. Deckard. 604 S.W.Zd 214 (Tex. Civ. App. -
San Antonio 1980. no wit). Unlike the failure or refusal of the
board to ~ a license, the revocetion or suspension of a bondsman’s
license may involve the loss of a property right protected under the
due process clauses of the state and federal constitutions. Sea U.S.
Const. Amend. 14; Tex. Const. art. I, 119; 10 Tex. Jur. 3d. iiiiness
and Occupation Licenses SlS. Cf. Smith v. Travis County Ball Bond
Board, 559 S.W.2d 693 (Tex. Cx App. - Austin 1977, writ ref’d
n.r.c.1 (denial of license). The question of whether the revocation
or suspension of such a ‘license for other than a final conviction
would violete due process need not be sddressed, hovever, inasmuch as
section 9(b)(3) of the statute alvays contemplated a final conviction,
in our opinion.
Similar language was contained in the old Liquor Control Act,
article 667-S. Penal Code of 1925. vhen it was considered by Attorney
General Gerald Mann In Attorney General Opinion O-1894 (1940). It
required the county judge to refuse a license application if the
applicant had been “convicted of a felony” within two years. Attorney
General Mann concluded that under a statute like article 44.11 of the
current Code of Criminal Procedure (vhich suspends and arrests the
trial court’s judgment until the appellate court has rendered judgment
and returned its mandate), the term “convicted of a felony” as used in
a statute such as the one under consideration meant a “final
conviction.” Thereafter, the legislature amended the statute to
expressly require such refusal only if the applicant had been “finally
convicted.” See Acts 1953, S3rd Leg., R.S.. ch. 249 at 643. As
brought forwardin the 1977 Alcoholic Beverage Code. the provision now
appears in section 61.43(l) of the code. Cf. V.T.C.S., art. 6252-13~
(revocation or suspension of licenses for prior criminal convictions).
The situation here is analogous , and we reach a similar conclusion.
We note that the vords “after conviction,” as used in article IV,
sections 11 and 11-A of the constitution respecting the gubernatorial
pardoning power. do not mean a final conviction in the sense that a
mandate of affirmance has been issued by the court of criminal
appeals, or that no appeal has been taken. See NcNew v. Stste. 608
S.W.Zd 166 (Tex. Crim. App. 1978); Ex partexles. SO2 S.W.Zd 774
(Tex. Grim. App. 1973); Duke v. State, 291 S.W. 541.(Tex. Crim. 1927).
Nevertheless. it has been the law in Texas for many years that e
person Is not Ed “‘convict” in the sense that the penalties, of
conviction can be visited upon him until the judgment against him has
become final. See Arcia v. Stare. 9 S.W. 685 (Tax. App. 1888. no
writ). We do notthink it was the purpose of the legislature. when
enacting section 9(b)(3) in its original form, to authorize the
_ penalizing of a person found guilty by a jury regardless of whether
p. 1638 :
Honorable Harold Lcrcv - Page 3 (XW-622)
the verdict was later overturned. See Code Crim. Proc.. art. 66.11
(effect of appeal); State v. Klein, m S.W.Zd 250 (Tex. Crim. 1969).
Cf. Woodmen of the World v. Dodd, 136 S.W. 256 (Tex. Clv. App. 1911,
Twit) (avoidance of insurance policy)..
SUMMARY
The placement of the vord “final” before the
word “conviction” in section 9(b)(3) of article
2372p-3, as amended. did not vork a substantive
change in the grounds for revocation or suspension
of a bail bondsman’s license. but merely clarified
the prior law.
3ARK WHITE
Attorney General of Texas
JOHNW. FAINTER, JR.
First Assistant Attorney General
RICHARDE. GRAYIII
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED
:
OPINIONCOMMITTEE
Susan L. Garrison. Chairman
Jon Bible
Rick Gilpin
W. Reed Lockhoof
Jim Iloellinger
Bruce Youngblood
p. .1639