Untitled Texas Attorney General Opinion

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-