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
-3775-
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.
e3777-
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
-3781-