Can you get a pardon in Texas after completing deferred adjudication?

Plain-English summary

The Texas Board of Pardons and Paroles asked the Attorney General whether someone who finished deferred adjudication community supervision, and then had the criminal charges dismissed and was discharged under section 5(c) of article 42.12 of the Code of Criminal Procedure, could apply to the board for a pardon. The practical reason people were asking: a full pardon was a gateway to expunction of an arrest record, because the expunction statute (article 55.01) at the time allowed expunction for a person who was "convicted and subsequently pardoned." Board staff had noticed there was no conviction when charges are dismissed, and questioned whether accepting pardon applications in that situation made sense.

The office concluded these applicants are not eligible for a pardon. It got there without having to decide the hard question of whether deferred adjudication is or is not a "conviction." The reasoning worked either way. If a finding of substantiated guilt under section 5(a) is not a "conviction," the governor's pardon power never attaches, because the Texas Constitution gives the governor power to pardon only "after conviction." If a finding of substantiated guilt is a "conviction," then the later dismissal and discharge under section 5(c) leaves nothing for a pardon to operate on, because a pardon (other than one based on actual innocence) reaches only the punishments, penalties, disabilities, and disqualifications the law attaches to a conviction.

The office walked through what a pardon can and cannot do. Drawing on a line of Texas Court of Criminal Appeals cases, it explained that a pardon forgives the penalty but does not erase the fact of the crime or the conviction. A pardoned prior conviction can still be used to enhance punishment for a later offense, to bar probation eligibility, to deny bail, to prove felon-in-possession offenses, and to impeach a witness, and it does not restore reputation or good character. Because the consequences that section 5(c) preserves (using the prior deferred adjudication in a later prosecution, or in certain child-care and sex-offender-services licensing decisions) are either penalties tied to a future offense or character-based licensing judgments, none of them is something a governor's pardon can forgive.

The office closed by addressing the real goal behind the applications. An arrest that leads to deferred adjudication and dismissal is not itself a legal disability. Being arrested can be embarrassing and can make life harder, and expunging the record might help the person, but a pardon cannot pardon an arrest. So the route these applicants wanted, pardon first, then expunction, was not available.

Currency note

This opinion was issued in 1995. 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.

Texas has substantially rewritten this area since 1995. The adult community supervision statute that was numbered article 42.12 in 1995 was later repealed and recodified, so the "section 5(c)" provisions discussed here now live under different numbers. The expunction statute (article 55.01) and the separate record-sealing remedy for deferred adjudication have also changed repeatedly. Read this page for how the office reasoned in 1995, and check current Texas law before relying on any specific procedure or eligibility rule mentioned here.

What the opinion meant for those who asked

For the Board of Pardons and Paroles (the requestor): The office answered the staff's underlying doubt. Because a person discharged after deferred adjudication under section 5(c) has no conviction-based disability left to remit, that person was not eligible to apply for a pardon, and the board's practice of accepting such applications had no object to act on.

For people who completed deferred adjudication: Under this opinion, a successful deferred adjudication that ended in dismissal and discharge left nothing for a pardon to forgive. The opinion treated that as good news on the merits (no continuing legal disability flowed from the deferred adjudication itself) but it foreclosed the pardon-then-expunction path some applicants were pursuing for their arrest records.

For the Governor's clemency function: The opinion described the limits of the pardon power as the courts had drawn them. A pardon not based on actual innocence reaches only the punishments and disabilities attached to a conviction; it cannot erase the underlying facts, cannot stop a prior conviction from being used in later proceedings, and cannot pardon an arrest.

Common questions

Can I get a Texas pardon after I finish deferred adjudication?
Under this 1995 opinion, no. Once the charges were dismissed and you were discharged under section 5(c), there was no conviction-based penalty or disability for a pardon to remove, so you were not eligible to apply.

Why were people applying for pardons after deferred adjudication at all?
The opinion explained that applicants wanted a pardon as a stepping stone to expunction of their arrest records. The expunction statute (article 55.01) allowed expunction for someone "convicted and subsequently pardoned," so a pardon looked like the key. The office said that key did not fit, because a pardon cannot pardon an arrest.

Does deferred adjudication count as a conviction in Texas?
The opinion deliberately did not resolve that question. It held that the applicants lose either way: if it is not a conviction, the pardon power never attaches; if it is, the section 5(c) dismissal leaves nothing for a pardon to forgive.

What can a Texas pardon actually do?
According to the cases the opinion cited, a pardon (other than one for actual innocence) forgives the penalty and can restore civil rights lost because of the conviction, but it does not erase the crime or the conviction itself. A pardoned conviction can still be used to enhance a later sentence, bar probation, deny bail, prove felon-in-possession charges, and impeach a witness.

Is an arrest record a "legal disability" a pardon can clear?
No. The office said an arrest that leads to prosecution, deferred adjudication, and dismissal is not a punishment or legal disability arising from a conviction, even though it can be embarrassing and cause real problems like trouble finding work.

Background and statutory framework

The Board of Pardons and Paroles exists under article 42.18 of the Code of Criminal Procedure and section 11 of article IV of the Texas Constitution. Section 11(b) and code article 48.01 give the governor power, "after conviction" and on the board's written recommendation, to grant reprieves, commutations, and pardons. That "after conviction" requirement is the constitutional hinge of the opinion.

Deferred adjudication is set up in section 5 of article 42.12. Under section 5(a), a judge who receives a plea of guilty or nolo contendere, hears the evidence, and finds that it substantiates the defendant's guilt may defer further proceedings without entering an adjudication of guilt and place the defendant on community supervision. Section 5(b) lets the court proceed to adjudication if a condition is violated. Section 5(c) provides that, on expiration of the supervision without an adjudication of guilt, the judge dismisses the proceedings and discharges the defendant. Subsection (c) also says that dismissal and discharge "may not be deemed a conviction" for disqualification or disability purposes, while carving out limited uses of the prior deferred adjudication: in the punishment phase of a later prosecution (section 5(c)(1); see article 37.07, section 3), and in licensing decisions for child-care or child-placing agencies (section 5(c)(2); see Human Resources Code chapter 42) and for providers of rehabilitative mental health or medical services to sex offenders (section 5(c)(3); see V.T.C.S. article 4413(51)).

To define the reach of the pardon power, the office relied on a series of Texas Court of Criminal Appeals decisions. Jones v. State described clemency as the power to remit fines and discharge the convict from penal service, and stressed that the governor can forgive the penalty but cannot make the courts forget the crime or the conviction. Miller v. State and Easterwood v. State recognized that a pardon can restore civil rights lost as part of the punishment, such as testimonial competency, jury service, and suffrage. The office then catalogued what a pardon does not undo: a prior conviction can still enhance punishment (Penal Code section 12.42), bar probation eligibility (Watkins v. State; article 42.12, section 4(e)), support denial of bail (Ex parte Smith), and prove possession of firearms or burglary tools by a convicted felon (Runo v. State; Logan v. State), and it can still impeach a testifying felon (Sipanek v. State; Texas Rule of Criminal Evidence 609) unless the pardon was granted for innocence or total reformation (Bennett v. State). A pardon also will not restore a disbarred attorney's license or the good character required for bar admission (Hankamer v. Templin). The thread the office drew from all of this: a pardon reaches only the penalties and disabilities the law attaches to the pardoned conviction, so where none of those survive a section 5(c) dismissal, a pardon would be "a nullity for lack of an object."

The expunction statute supplied the motive. Article 55.01 allowed expunction of arrest records when a person was "convicted and subsequently pardoned," with the procedure in article 55.02. Because an arrest is not a disability arising from a conviction, the office concluded the pardon power could not be used to reach it.

Citations

Constitutional and statutory provisions discussed:

• Texas Constitution art. IV, § 11 (governor's pardon power "after conviction," on the board's recommendation)
• Code of Criminal Procedure art. 48.01 (parallel statement of the pardon power)
• Code of Criminal Procedure art. 42.18 (Board of Pardons and Paroles)
• Code of Criminal Procedure art. 42.12, § 5 (deferred adjudication; subsections (a), (b), (c), and (c)(1)-(3))
• Code of Criminal Procedure art. 42.12, § 4(e) (probation eligibility); art. 37.07, § 3 (punishment evidence)
• Code of Criminal Procedure art. 55.01 (expunction of arrest records); art. 55.02 (expunction procedure)
• Penal Code § 12.42 (enhancement of punishment); Texas Rule of Criminal Evidence 609 (impeachment by prior conviction)
• Human Resources Code ch. 42 (child-care licensing); V.T.C.S. art. 4413(51) (sex-offender treatment provider registration)

Cases discussed:

• Jones v. State, 147 S.W.2d 508 (Tex. Crim. App. 1941) (scope and limits of clemency)
• Miller v. State, 79 S.W. 567 (Tex. Crim. App. 1904); Easterwood v. State, 31 S.W. 294 (Tex. Crim. App. 1895) (pardon restores civil rights lost as punishment)
• Ex parte Smith, 548 S.W.2d 410 (Tex. Crim. App. 1977), overruled on other grounds by Ex parte Blume, 618 S.W.2d 373 (Tex. Crim. App. 1981) (pardoned conviction still relevant to bail)
• Logan v. State, 448 S.W.2d 462 (Tex. Crim. App. 1969); Runo v. State, 556 S.W.2d 808 (Tex. Crim. App. 1977) (pardoned conviction proves felon-in-possession and burglary-tools offenses)
• Watkins v. State, 572 S.W.2d 339 (Tex. Crim. App. 1978) (pardoned conviction bars probation eligibility)
• Sipanek v. State, 272 S.W. 141 (Tex. Crim. App. 1925); Bennett v. State, 5 S.W. 527 (Tex. App. 1887) (impeachment of a pardoned felon)
• Hankamer v. Templin, 187 S.W.2d 549 (Tex. 1945) (pardon does not restore a disbarred attorney's license)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0349
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0349.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 31, 1995

Mr. Victor Rodriguez
Chair
Texas Board of Pardons and Paroles
P.O. Box 599
Huntsville, Texas 77342

Opinion No. DM-349

Re: Whether a person who has successfully completed deferred adjudication community supervision who has been discharged after dismissal of charges pursuant to section 5(c) of article 42.12 of the Code of Criminal Procedure is eligible to apply to the Board of Pardons and Paroles for a pardon (RQ-683)

Dear Mr. Rodriguez:

Your predecessor asked this office whether a person who has successfully completed deferred adjudication community supervision and who has been discharged after dismissal of charges pursuant to section 5(c) of article 42.12 of the Code of Criminal Procedure is eligible to apply to the Board of Pardons and Paroles (the "board") for a pardon. The board exists by virtue of article 42.18 of the Code of Criminal Procedure (the "code") and the mandate of section 11(a) of article IV of the Texas Constitution. Subsection (b) of section 11 and code article 48.01 both provide in pertinent part as follows:

In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishments and pardons. . . .

Tex. Const. art. IV, § 11(b) (emphasis added); Code Crim. Proc. art. 48.01 (emphasis added).

Your predecessor explained that persons who have successfully completed deferred adjudication community supervision are seeking full pardons after the dismissal of their criminal charges pursuant to code article 42.12, section 5(c). These persons apparently wish to benefit from the pardons they seek by obtaining expunction of their arrest records. See Code Crim. Proc. art. 55.02 (setting forth procedure for expunction). They would claim in a petition for expunction that they are entitled to such relief under code article 55.01(a)(1)(B), which provides as follows:

(a) A person who has been arrested for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
....
(B) convicted and subsequently pardoned. . . .

Your predecessor asked whether the requirement of a "conviction" in the above-quoted constitutional and statutory pardon provisions disqualifies these persons from pardon eligibility for the reason that they have not undergone an "adjudication of guilt," id. art. 42.12, § 5(c). Your predecessor explained the reason for this question in part as follows: "Since there is no conviction when charges are dismissed, our staff questions whether the policy of accepting applications for full pardons is appropriate when there is no conviction."

Subsections (a) to (c) of section 5 of code article 42.12 provide in part as follows (with emphasis added):

(a) Except as provided by Subsection (d) of this section, when in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. . . .

(b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred.

(c) On expiration of community supervision imposed under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. . . .

We are of the opinion that a person charged with a criminal offense who has successfully completed deferred adjudication community supervision is not eligible to apply to the board for a pardon, but we believe it is unnecessary to determine whether deferred adjudication involves a "conviction" in order to reach this conclusion. If a finding of substantiated guilt under section 5(a) of code article 42.12 is not a "conviction" for purposes of the governor's constitutional pardon power, then the governor has no power to grant a pardon for the offense for which the defendant was found guilty because the pardon could not be granted "after conviction," Tex. Const. art. IV, § 11(b). On the other hand, if a finding of substantiated guilt is a "conviction," then for the following reasons a subsequent dismissal of the proceeding without an "adjudication of guilt" pursuant to section 5(c) would remove the matter from the governor's pardon power.

Subsection (c) continues after the above-quoted passage to provide that, generally, "[a] dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense," but that the defendant's prior receipt of deferred adjudication community supervision may be considered in the punishment phase of a prosecution for a subsequent offense, Code Crim. Proc. art. 42.12, § 5(c)(1); see id. art. 37.07, § 3, or in the process of determining whether to issue, renew, deny, or revoke either of the following: a license to operate a child-care facility or child-placing agency, id. art. 42.12, § 5(c)(2); see Hum. Res. Code ch. 42, or a license or registration to provide rehabilitative mental health or medical services to sex offenders, Code Crim. Proc. art. 42.12, § 5(c)(3); see V.T.C.S. art. 4413(51). We are of the opinion that none of the provisions in subsection (c) establish penalties or disabilities that are within the governor's power to forgive by pardon.

A pardon (other than one based on a finding of actual innocence) can relieve a person only from the punishment that the law attaches to the commission of a crime.

Clemency power is vested in the Governor to the extent only that he can remit fines imposed which remain uncollected and discharge the convict from the penal service. . . .
. . . .
The Governor can forgive the penalty, but he has no power to direct that the courts shall forget either the crime or the conviction.

Jones v. State, 147 S.W.2d 508, 511 (Tex. Crim. App. 1941). Any rights of citizenship that were lost as a result of the conviction constitute a part of the punishment for the crime, so the governor also may restore such rights by pardon. Miller v. State, 79 S.W. 567, 567-68 (Tex. Crim. App. 1904) (pardon restores testimonial competency); see Easterwood v. State, 31 S.W. 294, 294 (Tex. Crim. App. 1895) (full pardon restores rights of jury service and suffrage). Black's Law Dictionary defines pardon as "[a]n executive action that mitigates or sets aside punishment for a crime" and "restores the rights and privileges forfeited on account of the offense." BLACK'S LAW DICTIONARY 1113 (6th ed. 1990).

A pardon does not, however, "'obliterate the fact of the commission of the crime and the conviction therefor; it does not wash out the moral stain,'" Jones, 147 S.W.2d at 510 (quoting 46 C.J. Pardon § 32, at 1193 (1928)); accord Ex parte Smith, 548 S.W.2d 410, 414 (Tex. Crim. App. 1977), overruled on other grounds by Ex parte Blume, 618 S.W.2d 373, 376 (Tex. Crim. App. 1981), unless the pardon is based on actual innocence, see Logan v. State, 448 S.W.2d 462, 464 (Tex. Crim. App. 1969) (there would be no offense if pardon was based on finding of innocence). A prior conviction may be offered in evidence in a subsequent prosecution for the purpose of enhancement of punishment, id. at 511-12; see Penal Code § 12.42, or to bar statutory eligibility for probation consideration, Watkins v. State, 572 S.W.2d 339, 343 (Tex. Crim. App. 1978); see Code Crim. Proc. art. 42.12, § 4(e), regardless of the fact that the defendant has received a full pardon. Similarly, a prior conviction that has been pardoned for any reason other than innocence is available to deny bail under Texas Constitution article I, section 11-A, Ex parte Smith, 548 S.W.2d at 414, or to prove the offenses of possession of firearms by a convicted felon, Runo v. State, 556 S.W.2d 808, 809 (Tex. Crim. App. 1977), and possession of burglary tools by a convicted felon, Logan v. State, 448 S.W.2d at 463-64. Furthermore, a felon who testifies may be subject to impeachment by proof of his conviction even if he has been pardoned, Sipanek v. State, 272 S.W. 141, 142 (Tex. Crim. App. 1925); see Tex. R. Crim. Evid. 609, unless he shows that the pardon was granted on the ground of innocence or total reformation, Bennett v. State, 5 S.W. 527, 529 (Tex. App. 1887). In the absence of such a showing, a pardon "does not change the common-law principle that the conviction of an infamous offense is evidence of bad character for truth." Id. Finally, a pardon will not restore the office of attorney to a person who has been disbarred because of a prior conviction or restore the good character that the person must possess to be admitted to the bar. Hankamer v. Templin, 187 S.W.2d 549, 550 (Tex. 1945).

The foregoing authorities show that a pardon that is not based on a finding of innocence may reach only the punishments, penalties, disabilities, and disqualifications that the law would attach to the pardoned conviction. Such a pardon neither affects the penal consequences of any subsequent offenses nor restores a person's reputation or good character. Jones, 147 S.W.2d at 510-11.

Therefore, to the extent that the law permits the fact of a prior conviction to be considered (1) in assessing the penal consequences of a subsequent offense or (2) in determining whether the person possesses the good character required for licensing in a position of responsibility and trust, the governor has no power to intervene by granting such a pardon. The provision in subsection (c)(1) of section 5 of article 42.12 is of the former nature; that subsection merely authorizes consideration of the prior conviction in assessing the penal consequences of a subsequent offense. The provisions of subsections (c)(2) and (c)(3) are of the latter nature; those provisions are merely limited grants of authority to consider the fact of the defendant's prior guilt when that guilt is relevant to the defendant's character. None of the provisions in subsection (c) constitute continuing penalties or disabilities.

Because nothing remains to be pardoned after charges are dismissed and the defendant is discharged pursuant to subsection (c), we are of the opinion that any purported pardon of an offense issued after dismissal and discharge would be a nullity for lack of an object. Cf. Miller, 79 S.W. at 567-68 (governor may extend clemency even after service of sentence on felony conviction because such conviction continues to deprive defendant of certain civil rights even after expiration of sentence). Therefore, a defendant who has been discharged under subsection (c) is not eligible for consideration for a pardon.

In closing, we note that an arrest that leads to prosecution, deferred adjudication, and ultimately dismissal of charges is not a legal disability. The fact that a person has been arrested may be embarrassing and may cause problems such as difficulty in obtaining employment, and it may be true that expunction of the record of arrest would be of great benefit to the person. Nevertheless, an arrest is not a punishment or legal disability arising from a conviction. Article 55.01 of the Code of Criminal Procedure grants a right of expunction of arrest records and files when a person has been convicted and then pardoned, but it does not empower the governor to pardon an arrest.

SUMMARY

A person who has successfully completed deferred adjudication community supervision and who has been discharged after dismissal of charges pursuant to section 5(c) of article 42.12 of the Code of Criminal Procedure is not eligible to apply to the Board of Pardons and Paroles for a pardon for the crime of which the person was found guilty, for such a person has no legal disabilities or disqualifications resulting from the deferred adjudication that are subject to remission by pardon.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee