Untitled Texas Attorney General Opinion

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-