Can someone keep a Texas peace officer license after a felony conviction is set aside or dismissed?

Plain-English summary

Texas law barred anyone convicted of a felony from working as a peace officer or county jailer. The state licensing agency for those jobs, the Commission on Law Enforcement Officer Standards and Education, asked the Attorney General to spell out exactly how far that bar reached. The governing statute, section 415.058 of the Government Code, said a felony conviction disqualified a person, and it added that the person still counted as "convicted" even if the sentence was later probated, even if the indictment was dismissed and the person released from all penalties, and even if the person was pardoned. The one exception written into the statute was a pardon granted expressly because the person was later shown to be innocent.

The commission's real question was about the situations the statute did not list, mostly ones where a court actually undoes the conviction. The Attorney General drew a clean line. The events the statute listed (probation, a dismissed indictment, release from penalties, an ordinary pardon) all leave the conviction itself standing, so none of them gave a disqualified person his license back. But where a court genuinely wipes out the conviction, the situation is different. If a court grants a new trial, lets the defendant withdraw a guilty plea and dismisses the indictment, or otherwise sets aside or dismisses the conviction, the person is treated as if the conviction never happened and is once again eligible. The commission had described three situations, and in each one the conviction had been set aside, so in each one the commission could license or relicense the person.

The last question was about timing. What about someone who is convicted but is still appealing? Here the history mattered. When the Legislature rewrote the predecessor statute in 1983, it deleted a requirement that the conviction be "final." The Attorney General read that deletion to mean a person does not get to keep working while exhausting appeals: a convicted person is disqualified even during a pending direct appeal. If the appeal later succeeds and the person is acquitted or the conviction is set aside, eligibility comes back, but not before.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The licensing statute (then section 415.058 of the Government Code) and the agency itself have since been reorganized, and the Texas Rules of Appellate Procedure have been renumbered since 1993, so confirm current law before relying on anything described here.

Background and statutory framework

The Commission on Law Enforcement Officer Standards and Education asked the Attorney General to construe section 415.058 of the Government Code. Subsection (a) provided that a person convicted of a felony is disqualified to be an officer or county jailer, that the commission may not license such a person, and that the commission shall, on conviction of a felony, immediately revoke the license of a person previously licensed. Subsection (b) defined when a person is "convicted" for this purpose: when a court of competent jurisdiction enters an adjudication of guilt on a felony offense under the laws of this or another state or the United States, regardless of whether the sentence is later probated and the person discharged from probation, the indictment is dismissed and the person released from all penalties and disabilities, or the person is pardoned, unless the pardon is granted expressly for subsequent proof of innocence.

The commission listed three situations in which it believed it had to revoke or deny a license, each one a case where the person had been convicted, released from probation, and then had the conviction set aside (through a new trial; through withdrawal of a guilty plea and dismissal of the indictment; or through dismissal and release from all penalties). It asked whether it had read the statute correctly, and separately whether it had to revoke or deny a license while a convicted person was pursuing a direct appeal.

Legislative history. The Legislature codified section 415.058 of the Government Code in 1987 as a nonsubstantive recodification of V.T.C.S. article 4413(29aa), section 8A, which the Legislature had amended in 1983. The 1983 amendment was prompted by the Austin Court of Appeals decision in Thompson v. Texas Commission on Law Enforcement Officer Standards and Education, No. 13,526 (Tex. App.-Austin 1983). In Thompson, a trial court had found a defendant guilty of a felony, probated the sentence, dismissed the indictment, and released the defendant from all penalties; the court later set aside the conviction and entered an acquittal on newly discovered evidence, and the defendant became a licensed peace officer. When the commission revoked his license on learning of the prior conviction, the court of appeals held that, because article 42.12 of the Code of Criminal Procedure required a discharged defendant to be released from all penalties and disabilities and the loss of a peace officer license was such a penalty and disability, the past conviction could not automatically bar his service, and remanded for the commission to reconsider. The bill's author, Senator McFarland, told a Senate committee that the amendments were meant to make a person convicted of a felony ineligible to serve as a police officer in Texas even if the sentence was probated. The 1983 amendments therefore narrowed the paths back to a license, and they deleted the requirement that the conviction be "final."

The line the AG drew. The Attorney General found no indication that the Legislature, in enacting Senate Bill 155, had contemplated the specific situations the commission raised, including a direct appeal. But the AG observed that, with the single exception of a pardon granted expressly for subsequent proof of innocence, the circumstances listed in section 415.058(b) (probation, dismissal of the indictment, release from penalties, pardon) all leave the conviction standing rather than setting it aside, a point reflected in Dixon v. McMullen, 527 F. Supp. 711, 718 (N.D. Tex. 1981) (a pardon on grounds other than proof of innocence does not eradicate a conviction and implies guilt), Watkins v. State, 572 S.W.2d 339, 341-42 (Tex. Crim. App. 1978), Jones v. State, 147 S.W.2d 508, 510 (Tex. Crim. App. 1941), and Attorney General Opinion MW-270 (1980). So section 415.058 distinguishes a conviction that is in effect set aside from one that remains: the commission must deny or revoke a license for a person convicted of a felony, except that the person is again qualified if pardoned expressly for proof of innocence, if the person later proves innocence in a court of law, or if a court sets aside or dismisses the conviction.

Applying it. In each of the commission's three situations, a court had set aside the conviction, so the person was again qualified and the commission could license or relicense. The AG reinforced the first situation with Rule 32 of the Texas Rules of Appellate Procedure, under which granting a new trial restores the case to its pretrial posture and the prior conviction is not to be regarded as a presumption of guilt, putting the accused back in the status enjoyed before conviction. On the appeal question, the AG concluded that by deleting the "final" requirement in 1983, the Legislature did not require a person to exhaust all appeals before the commission could act: section 415.058 required the commission to deny or revoke a license even while a direct appeal was pending. If the appeal succeeded and the person was acquitted or the conviction set aside, the commission could then license or relicense.

Common questions

Did a felony conviction permanently end a Texas law enforcement career?
Not necessarily permanent, but a conviction disqualified the person, and the usual outcomes that follow a conviction (probation, a dismissed indictment, release from penalties, an ordinary pardon) did not restore eligibility because the conviction still stood. Eligibility came back only if the conviction itself was wiped out.

What actually restored eligibility?
Three things, per the opinion: a pardon granted expressly for subsequent proof of innocence, proving innocence in a court of law, or a court setting aside or dismissing the conviction, such as by granting a new trial or letting the person withdraw a guilty plea and dismissing the indictment.

Did a regular pardon get someone their license back?
No. The opinion treated an ordinary pardon as leaving the conviction in place. Only a pardon granted expressly because the person was later proven innocent counted.

Could a person keep working while appealing the conviction?
No. Because the 1983 law dropped the requirement that a conviction be "final," the opinion concluded a convicted person was disqualified even while a direct appeal was pending. A win on appeal that acquitted the person or set aside the conviction would restore eligibility.

Citations

• Government Code § 415.058: (a) (felony conviction disqualifies an officer or county jailer; commission may not license and must revoke), (b) (defining conviction; probation, dismissal, release from penalties, or pardon do not change the result, except an innocence pardon)
• V.T.C.S. article 4413(29aa), § 8A (predecessor statute; 1983 amendment deleted the "final" requirement; nonsubstantively codified in 1987)
• Code of Criminal Procedure art. 42.12 (release of a discharged defendant from penalties and disabilities)
• Texas Rule of Appellate Procedure 32 (new trial restores pretrial posture; prior conviction not a presumption of guilt)
• Senate Bill 155, 68th Legislature (1983 amendments)
• Thompson v. Texas Commission on Law Enforcement Officer Standards and Education, No. 13,526 (Tex. App.-Austin 1983)
• Dixon v. McMullen, 527 F. Supp. 711 (N.D. Tex. 1981)
• Watkins v. State, 572 S.W.2d 339 (Tex. Crim. App. 1978)
• Jones v. State, 147 S.W.2d 508 (Tex. Crim. App. 1941)
• Attorney General Opinion MW-270 (1980)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0210
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0210.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and a few badly garbled passages (including the quoted text of the repealed predecessor statute) were reconstructed from context; garbled case names were verified against the official reporters. The linked PDF is authoritative. Some footnote text could not be fully recovered from the scan.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 26, 1993

Mr. Fred Toler
Executive Director
Texas Commission on Law Enforcement
Officer Standards and Education
1033 La Posada, Suite 240
Austin, Texas 78752

Opinion No. DM-210

Re: Construction of section 415.058 of the Government Code, addressing the effect of a felony conviction on the licensure of a law enforcement officer (RQ-207)

Dear Mr. Toler:

On behalf of the Commission on Law Enforcement Officer Standards and Education (the commission), you have asked us to construe section 415.058 of the Government Code. Section 415.058 provides as follows:

(a) A person who has been convicted of a felony is disqualified to be an officer or county jailer. The commission may not license such a person and shall on conviction of a felony immediately revoke the license of a person previously licensed.

(b) For the purposes of this section, a person is convicted of a felony if a court of competent jurisdiction enters an adjudication of guilt against the person on a felony offense under the laws of this or another state or the United States, regardless of whether:

(1) the sentence is subsequently probated and the person is discharged from probation;

(2) the accusation, complaint, information, or indictment against the person is dismissed and the person is released from all penalties and disabilities resulting from the offense; or

(3) the person is pardoned for the offense, unless the pardon is granted expressly for subsequent proof of innocence.

You state that the commission has interpreted section 415.058 to require it to revoke an officer's or county jailer's license when the licensee has been convicted of a felony, or to deny a license to an applicant who has been convicted of a felony. You list three circumstances in which the commission believes section 415.058 requires it to revoke or deny a license:

(1) when the individual is convicted as per the judgment and then released from probation and a new trial granted and the judgment of conviction is set aside;

(2) when the individual is convicted as per the judgment and then released from probation and the court allows the person to withdraw his or her plea of guilty, the indictment against the defendant is dismissed and the judgment of conviction is set aside; or

(3) when the individual's conviction is dismissed and he or she is released from all penalties.

You first ask whether the commission correctly has interpreted section 415.058 to apply in these three circumstances. You also ask whether section 415.058 requires the commission to revoke or deny a license if the convicted person is pursuing a direct appeal through the courts. If so, you ask whether the commission may license or relicense the person to serve as an officer or county jailer if the appeal is successful.

The legislature codified section 415.058 of the Government Code in 1987. See Acts 1987, 70th Leg., ch. 147, § 1, at 391. The legislature amended the predecessor statute to section 415.058, V.T.C.S. article 4413(29aa), § 8A, in 1983. See Acts 1983, 68th Leg., ch. 479, § 3, at 2809-10. Prior to its 1983 amendment, section 8A of article 4413(29aa), V.T.C.S., provided as follows:

(a) No person who has been convicted of a felony under the laws of this state, another state, or the United States may be licensed by the commission, [and such a person] is unqualified to be a peace officer, jailer or guard at a county jail, or reserve law enforcement officer.

(b) [On] conviction of a felony under the laws of this state, another state, or the United States, [a] person previously licensed by the commission to be a peace officer, jailer, or guard at a county jail, or reserve law enforcement officer [is disqualified], and the Commission shall immediately revoke the license of a person so convicted.

(c) Subsection (a) of this section does not apply to a person if the person has been placed on probation pursuant to the deferred adjudication provision of Subsection (a), Section 3d, Code of Criminal Procedure, 1965.

In 1983 the legislature deleted the requirement in subsection (b) that the conviction be "final," and amended subsection (c) to read substantially as section 415.058(b) of the Government Code presently reads. See Acts 1983, 68th Leg., ch. 479, § 3, at 2809-10. Because the legislature intended the 1987 codification of V.T.C.S. article 4413(29aa), section 8A to be nonsubstantive (see Acts 1987, 70th Leg., ch. 147, at § 16), we will refer to the statute as it existed from the time of the 1983 amendments to the time of the 1987 codification as section 415.058 of the Government Code.

The 1983 amendments to V.T.C.S. article 4413(29aa), section 8A were prompted by a decision the Texas Court of Appeals issued on January 26, 1983, Thompson v. Texas Commission on Law Enforcement Officer Standards and Education. See Hearings on S.B. 155 Before the Senate Comm. on Intergovernmental Relations, 68th Leg. (Feb. 8, 1983) (testimony of Senator McFarland, author) (tape available from Senate Staff Services). In Thompson the court of appeals considered whether the existing version of article 4413(29aa), section 8A(b), (c), V.T.C.S., authorized the commission to revoke the license of a peace officer who once had been convicted of a felony, but whose sentence had been probated. Thompson v. Texas Comm'n on Law Enforcement Officer Standards and Educ., No. 13,526, slip op. at 1 (Tex. App.-Austin 1983). In addition to probating the defendant's sentence, the trial court that had found the defendant guilty of a felony dismissed the charging indictment and released the defendant from all penalties and disabilities resulting from the crime. Id. at 2. Subsequently, in response to the defendant's motion for a new trial, the court set aside the previous conviction and substituted a judgment of acquittal based on newly discovered evidence. Id. The defendant later became licensed as a peace officer. Id.

Upon learning that the licensee once had been convicted of a felony, the commission revoked his license. Id. at 3. The former licensee filed a legal action against the commission and later appealed the trial court's decision in favor of the commission. The court of appeals found that when a court has discharged a convicted criminal defendant and dismissed the indictment against the defendant, article 42.12 of the Code of Criminal Procedure required the defendant to be released from all penalties and disabilities resulting from the conviction. Id. at 4. The Thompson court felt that the denial or revocation of a peace officer's license constitutes a "penalty" and "disability" within the context of article 42.12 of the Code of Criminal Procedure. Id. The court held, therefore, that the plaintiff's past conviction could not automatically bar his service as a peace officer, nor could it serve as the commission's sole basis for revoking the plaintiff's license. Id. at 5. Consequently, the court of appeals remanded the case to the district court and instructed the district court to order the commission to reconsider the revocation. Id.

In a public hearing on Senate Bill 155, which proposed, among other things, the above-mentioned amendments to V.T.C.S. article 4413(29aa), section 8A, the bill's author, Senator McFarland, made the purpose of the proposed amendments clear: a person who has been convicted of a felony should be ineligible to serve as a police officer in the state of Texas, even if that person's sentence was probated. See Hearings on S.B. 155 Before the Senate Comm. on Intergovernmental Relations, 68th Leg. (Feb. 8, 1983) (testimony of Senator McFarland, author) (tape available from Senate Staff Services). The 1983 amendments, therefore, narrowed the circumstances under which a convicted felon might obtain or regain a license to serve as an officer or county jailer. Among the circumstances listed in section 415.058(b) of the Government Code, the commission may license or relicense a person convicted of a felony to serve as an officer or county jailer only if the person is pardoned explicitly for subsequent proof of innocence. See generally Dixon v. McMullen, 527 F. Supp. 711 (N.D. Tex. 1981); Attorney General Opinion MW-270 (1980).

We were unable to find any indication that the legislature, when it enacted Senate Bill 155, contemplated any of the situations about which you inquire, including the direct appeal of a conviction. We note, however, that with the exception of a pardon granted expressly for subsequent proof of innocence, the circumstances articulated in section 415.058(b) do not involve the setting aside or dismissal of a person's conviction; instead, the conviction remains standing despite probation of the sentence, dismissal of the indictment, the release of all penalties and disabilities resulting from the offense, or pardon. See Hearings on S.B. 155 Before the Senate Comm. on Intergovernmental Relations, 68th Leg. (Feb. 8, 1983) (testimony of Alfredo Villarreal, witness) (tape available from Senate Staff Services) (stating that, even if the circumstances of the kind listed in section 415.058(b)(2) transpire, the conviction remains standing); Dixon v. McMullen, 527 F. Supp. 711, 718 (N.D. Tex. 1981) (stating that a pardon granted for grounds other than subsequent proof of innocence does not eradicate a final conviction and implies guilt); Watkins v. State, 572 S.W.2d 339, 341-42 (Tex. Crim. App. 1978) (same); Attorney General Opinion MW-270 (1980) at 1 (quoting Jones v. State, 147 S.W.2d 508, 510 (Tex. Crim. App. 1941)) (same). We believe, therefore, that section 415.058(b) distinguishes between a circumstance in which a person's conviction is, in effect, set aside and a circumstance in which the person's conviction remains. In sum, section 415.058 requires the commission to deny a license to or revoke the license of a person who has been convicted of a felony, except that the person once again is qualified to be licensed to serve as an officer or county jailer if the person is pardoned expressly for subsequent proof of innocence, if the person subsequently proves his or her innocence in a court of law, or if a court sets aside or dismisses the person's conviction.

Using this analysis, we consider the specific circumstances about which you inquire. You first ask whether the commission must deny a license to or revoke the license of a person who is convicted, released from probation, granted a new trial, and the judgment of conviction set aside. Once a court sets aside a person's conviction, that person once again is qualified to serve as an officer or county jailer. Additionally, Rule 32 of the Texas Rules of Appellate Procedure provides that when a court grants a criminal defendant's motion for a new trial, the case stands as it would have if no former trial had taken place. The rule further provides that "the prior conviction shall not be regarded as a presumption of guilt." In other words, the grant of a new trial and the setting aside of a conviction restore an accused person to the status he or she enjoyed prior to conviction. We believe this should apply with equal force to the accused person's status before the commission. Consequently, the commission may license or relicense a person who has been convicted, released from probation, granted a new trial, and has had the judgment of conviction set aside.

Second, you ask whether the commission must deny a license to or revoke the license of a person who has been convicted, released from probation, allowed to withdraw his or her guilty plea, had the indictment against the person dismissed, and had the conviction set aside. When a court sets aside a person's conviction, that person once again is qualified to serve as an officer or county jailer under section 415.058 of the Government Code. Thus, the commission may license or relicense a person who has been convicted, released from probation, allowed to withdraw his or her guilty plea, had the indictment dismissed, and had the conviction set aside.

Third, you ask whether the commission must deny a license to or revoke the license of a person whose conviction has been dismissed and who has been released from all penalties. Once again, when a court sets aside a conviction, the person reverts to the status he or she enjoyed prior to conviction. Thus, the commission may license or relicense a person if a court has set aside the conviction and released the person from all penalties.

Finally, you ask whether a person who has been convicted but who has filed a direct appeal is disqualified to serve as an officer or county jailer. In this regard, we note that the legislature's 1983 amendment of V.T.C.S. article 4413(29aa), section 8A deleted the requirement that the conviction be "final." By doing so, we believe that the legislature did not intend to require that a person exhaust all possible appeals of a conviction before the commission may deny or revoke the person's license solely because of the conviction. In answer to your final question, therefore, section 415.058 of the Government Code requires the commission to deny or revoke a license even though the applicant or licensee is pursuing a direct appeal of the conviction. In accordance with our conclusion above, if the applicant or licensee succeeds on appeal and is subsequently acquitted by a court of law or has the conviction set aside, the commission may license or relicense the person.

SUMMARY

Under section 415.058 of the Government Code, a person is disqualified from serving as an officer or county jailer if the person is convicted of a felony. Such a person is once again qualified to hold a license to serve as an officer or county jailer if the person is pardoned expressly for proof of innocence, if the person subsequently proves his or her innocence in a court of law, or if a court sets aside or dismisses the conviction.

If a person is convicted of a felony, that person is disqualified to serve as an officer or county jailer even though he or she is appealing the decision. If the person succeeds on the appeal, however, and the court subsequently acquits the person or sets aside the person's conviction, the person is once again qualified to serve as an officer or county jailer.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes (recovered in part from the scan):

When the court of appeals issued its opinion in Thompson, the relevant material was in article 42.12, section 7 of the Code of Criminal Procedure. See Acts 1989, 71st Leg., ch. 679, § 2, at 3166; Acts 1983, 68th Leg., ch. 303, § 12, at 1591-92. The legislature renumbered section 7 in 1989; presently, the material that was in article 42.12, section 7 of the former code appears in article 42.12, section 23 of the Code of Criminal Procedure. See Acts 1989, 71st Leg., ch. 785, § 4.17, at 3502, 3516.

[An additional footnote concerning the designation of article 4413(29aa), section 8A(c)(2), V.T.C.S. (now in the Government Code) could not be fully recovered from the scan.]