Can someone with an out-of-state felony run for office in Texas if their rights were restored?

Plain-English summary

The Bowie County Criminal District Attorney asked the AG whether a person who was sentenced under the Arkansas First Offender Act, and whose rights were later restored by an Arkansas court, could run for office in Texas. The factual backdrop: a former mayor of Maud, Texas, had pleaded guilty to a felony theft offense in Arkansas about twenty-two years earlier. In 1994 he received a five-year probated, suspended sentence under Arkansas Act 346, conditioned on good behavior and payment of fees and costs. He completed the conditions, was discharged early, and an Arkansas court ordered his probation terminated. Some Maud citizens questioned whether he was eligible for public office in Texas and whether he had broken Texas law by not listing the Arkansas matter on his ballot application.

The AG worked through two layers. First, under Arkansas Act 346 (the First Offender Act), a court could defer proceedings and place a first-time defendant on probation without entering a judgment of guilt, then discharge the defendant without a court adjudication of guilt and dismiss the case once the conditions were met. Arkansas courts treat a deferment under Act 346 as not a conviction at all. Nothing in the materials showed this individual had been finally convicted of a felony by the Arkansas court.

Second, even assuming there had been a final conviction, Election Code section 141.001(a)(4) disqualifies someone only when the person has not been "pardoned or otherwise released from the resulting disabilities." The Arkansas order stated the individual was exonerated of any criminal purpose and released from all penalties and disabilities resulting from the proceeding. The AG then turned to the Full Faith and Credit Clause of the U.S. Constitution, which requires each state to recognize valid judgments of its sister states. Absent any evidence that the Arkansas judgment was invalid, Texas must recognize the Arkansas order releasing him from the penalties and disabilities of the offense. Because those penalties and disabilities had been removed, section 141.001(a)(4) did not make him ineligible to hold public office in Texas. On the ballot-application question, the AG explained that since his release fell within the scope of section 141.001(a)(4), it was unlikely a court would find he violated the application statute by not identifying the 1994 Arkansas action, while stressing that the AG does not decide as a matter of law whether particular conduct is a crime.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that an individual whose penalties and disabilities were removed by an Arkansas court is not disqualified under Election Code section 141.001(a)(4) from holding public office in Texas, because the Full Faith and Credit Clause requires Texas to recognize the Arkansas order.

Candidates with out-of-state records (as the opinion described them): The opinion treated a sister-state court order releasing a person from the penalties and disabilities of an offense as something Texas must recognize, so that release carries the same effect under the Election Code's disqualification provision.

Voters and citizens who raised the question (as the opinion described them): The opinion explained it was unlikely a court would find the individual violated the ballot-application statute by omitting the 1994 Arkansas matter, while noting the AG does not resolve as a matter of law whether specific conduct is a crime.

Common questions

Did an old out-of-state felony automatically disqualify this person from Texas office?
No. The opinion explained that section 141.001(a)(4) disqualifies a person only if a final felony conviction's disabilities have not been removed, and here an Arkansas court had released the individual from all penalties and disabilities.

Why did Texas have to honor the Arkansas court's order?
The opinion relied on the Full Faith and Credit Clause of the U.S. Constitution, which requires each state to recognize valid judgments of other states' courts. Absent evidence the Arkansas judgment was invalid, Texas had to give it effect.

Was the Arkansas First Offender Act outcome even a conviction?
The opinion noted that under Arkansas Act 346 a deferment is not a conviction, and nothing in the materials showed the individual had been finally convicted of a felony by the Arkansas court.

Did failing to list the Arkansas matter on the ballot application break the law?
The opinion concluded it was unlikely a court would find a violation, because the release of penalties and disabilities fell within section 141.001(a)(4). It added that the AG does not decide as a matter of law whether particular actions are a crime.

Background and statutory framework

Election Code subsection 141.001(a)(4) makes a person ineligible for public office if "finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities" (Tex. Elec. Code § 141.001(a)(4)). A candidate's application for a place on the ballot must include a statement about the candidate's felony-conviction status (Tex. Elec. Code §§ 141.031, 141.031(a)(4)(G)). Felony convictions can trigger other civil disabilities as well, such as voter qualification and jury service (Tex. Elec. Code § 11.002(a)(4); Tex. Gov't Code § 62.102(8)), and the constitution directs the Legislature to impose civil disabilities for certain crimes (Tex. Const. art. XVI, § 2).

At the time of the Arkansas matter, Act 346 authorized a court to defer proceedings for a first-time defendant and place the defendant on probation without entering a judgment of guilt, then discharge the defendant without a court adjudication of guilt upon completion of the conditions (Ark. Code § 16-93-303(a)(1)(A)(i) (1995); Ark. Code § 16-93-303(b) (1995); see also Ark. Code §§ 16-93-301 - 16-93-305; cf. Tex. Code Crim. Proc. art. 42.12(20)). Arkansas courts recognize that a deferment under Act 346 is not a conviction (State v. Webb, 281 S.W.3d 273 (Ark. 2008); Duncan v. State, 823 S.W.2d 886 (Ark. 1992)). The AG read section 141.001(a)(4) by its plain language (In re Christus Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016)). The Full Faith and Credit Clause requires each state to recognize valid judgments of sister states (U.S. Const. art. IV, § 1; Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791 (Tex. 1992); Baker v. Gen. Motors Corp., 522 U.S. 222 (1998); Milliken v. Meyer, 311 U.S. 457 (1940)), so Texas had to recognize the Arkansas order releasing the individual from the penalties and disabilities of the offense. On the ballot-application question, the AG relied on its practice of not deciding whether particular conduct is a crime (Tex. Att'y Gen. Op. No. GA-0956 (2012)).

Citations

Constitutional and statutory provisions:

• U.S. Const. art. IV, § 1
• Tex. Const. art. XVI, § 2
• Tex. Elec. Code §§ 141.001(a)(4), 141.031, 141.031(a)(4)(G), 11.002(a)(4)
• Tex. Gov't Code § 62.102(8)
• Tex. Code Crim. Proc. art. 42.12(20)
• Ark. Code §§ 16-93-301 - 16-93-305, 16-93-303(a)(1)(A)(i) (1995), 16-93-303(b) (1995)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0956 (2012)

Cases:

• State v. Webb, 281 S.W.3d 273 (Ark. 2008)
• Duncan v. State, 823 S.W.2d 886 (Ark. 1992)
• In re Christus Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016)
• Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791 (Tex. 1992)
• Baker v. Gen. Motors Corp., 522 U.S. 222 (1998)
• Milliken v. Meyer, 311 U.S. 457 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0138
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0138.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 17, 2017

The Honorable Jerry D. Rochelle Opinion No. KP-0138
Bowie County Criminal District Attorney
601 Main Street Re: The effect of a conviction in another
Texarkana, Texas 75504 state, and a subsequent restoration of rights by
the other state, on an individual's ability to run
for or hold public office in Texas
(RQ-0131-KP)

Dear Mr. Rochelle:

    You seek an opinion on "whether an individual who was sentenced under ... the Arkansas First Offender Act and Who[se] rights were restored pursuant to the statutes of Arkansas and so ordered by the Circuit Court in Arkansas may run for office in Texas." [1] Information included with your request shows that a former mayor of Maud, Texas, pleaded guilty to a felony theft offense in Arkansas twenty-two years ago. [2] Documents attached to your request letter reveal that in 1994 the individual received a five-year "probated suspended sentence under [Arkansas] Act 346 ... conditioned upon his future good behavior" and the payment of certain fees and costs in Clark County, Arkansas. See Attachment to Request Letter, (Motion to Terminate Probation). The individual was discharged early after having "satisfactorily fulfilled the conditions of his probated sentence." Attachment to Request Letter, (Order Terminating Probation). Some citizens in Maud question whether this individual is eligible for public office in Texas under the Election Code. See Request Letter and Attachment to Request Letter; [3] see also TEX. ELEC. CODE § 141.001(a)(4). The citizens also question whether this individual violated Texas law in filing an application for a place on the ballot. [4] See TEX. ELEC. CODE § 141.031(a)(4)(G) (requiring a candidate's application for a place on the ballot to include a statement regarding the candidate's lack of felony convictions).

    Election Code subsection 141.001(a)(4) makes ineligible for public office in this State a person who is "finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities." Id. § 141.001(a)(4). At the time of this individual's criminal matter before an Arkansas court, Arkansas Act 346 authorized a court to defer proceedings of a "defendant who previously has not been convicted of a felony" and place the defendant on probation "without ... entering a judgment of guilt." ARK. CODE § 16-93-303(a)(1)(A)(i) (1995); see State v. Webb, 281 S.W.3d 273, 274 (Ark. 2008) ("Act 346 of 1975, known as the First Offenders Act, is codified at ARK. CODE §§ 16-93-301 - 16-93-305."). Upon a defendant's "fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof," a court was required to discharge the defendant "without court adjudication of guilt" and dismiss the case. ARK. CODE § 16-93-303(b) (1995); see Duncan v. State, 823 S.W.2d 886, 887 (Ark. 1992) (recognizing that a deferment under Arkansas Act 346 is not a conviction); cf. TEX. CODE CRIM. PROC. art. 42.12(20). Nothing in the information you submitted to us demonstrates that the individual about whom you ask was finally convicted of a felony by the Arkansas court. See Attachment to Request Letter, (Order Terminating Probation); Duncan, 823 S.W.2d at 887 (recognizing that a deferment under Act 346 is not a conviction).

    Even if Arkansas law considered the individual to have been "finally convicted," the plain language of Election Code section 141.001(a)(4) applies to only a final conviction "from which the person has not been pardoned or otherwise released from the resulting disabilities." TEX. ELEC. CODE § 141.001(a)(4) (emphasis added); see In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 280 (Tex. 2016) ("When construing a statute, we look to the plain language to determine the intent of the Legislature."); cf. TEX. CONST. art. XVI, § 2 (directing the Legislature to make laws imposing civil disabilities for conviction of certain crimes). [5] Thus, a person released from the disabilities of a final conviction is not disqualified under subsection 141.001(a)(4) from holding public office in Texas. And the information you provide establishes that pursuant to Arkansas Act 346, an Arkansas court ordered the termination of this individual's probated sentence. See Attachment to Request Letter, (Order Terminating Probation). That judicial order states that the individual at issue here is "exonerated of any criminal purpose, and ... is hereby released from all penalties and disabilities" resulting from the criminal proceedings." Id.

    Article IV, section 1 of the United States Constitution requires that each state give "full faith and credit" to "the public acts, records, and judicial proceedings of every other state." Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex. 1992) (quoting U.S. CONST. art. IV, § 1). The Clause requires each state to recognize and give effect to valid judgments rendered by the courts of its sister states. See Bard, 839 S.W.2d at 794-95. With respect to judgments, the "full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land." Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998); see also Milliken v. Meyer, 311 U.S. 457, 462 (1940) ("[I]f the judgment on its face appears to be a record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself." (quotation marks omitted)). Absent any evidence that the Arkansas court's judgment was invalid, the Full Faith and Credit Clause requires the State of Texas to recognize the Arkansas court's order. Accordingly, the individual's release from the penalties and disabilities of the offense by an Arkansas court must be recognized by Texas as a release of penalties and disabilities of the offense. Cf. Attachment to Request Letter, (Order Terminating Probation) (stating that "Movant is exonerated of any criminal purpose, and Movant is hereby released from all penalties and disabilities resulting from this proceeding"). As the penalties and disabilities of this individual's offense have been removed, subsection 141.001(a)(4) does not render him ineligible to hold public office in Texas. See TEX. ELEC. CODE § 141.001(a)(4) (making ineligible a person who is "finally convicted ... [or] has not been pardoned or otherwise released from the resulting disabilities" (emphasis added)).

    While this office does not determine as a matter of law whether particular actions constitute a criminal offense, we can advise you that because the individual's release of penalties and disabilities is within the scope of Election Code subsection 141.001(a)(4), it is unlikely that a court would determine this individual violated section 141.031 by failing to identify the 1994 Arkansas court action on his application for a place on the ballot. See Tex. Att'y Gen. Op. No. GA-0956 (2012) at 3 (stating that the question whether "a person has committed a crime in any particular circumstances is a question of fact that cannot be resolved in an attorney general opinion").

                                 SUMMARY

                   Under the Full Faith and Credit Clause of the United States Constitution, the State of Texas must recognize an Arkansas court's valid order dismissing a felony charge and releasing an individual from the penalties and disabilities of that charge in Arkansas. An individual for whom the penalties and disabilities have been removed by an Arkansas court is not prohibited by Election Code subsection 141.001(a)(4) from holding public office in Texas.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter and attachment from Honorable Jerry D. Rochelle, Bowie Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 26, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Attachment to Request Letter" respectively) (Attachment to Request Letter on file with the Op. Comm.).

[2] See Attachment to Request Letter, Lynn LaRowe, Maud Mayor Not Guilty of Making False Claim, TEXARKANA GAZETTE (Sept. 14, 2016).

[3] Letter from Glenda Wilson to Honorable Jerry Rochelle, Bowie Cty. Crim. Dist. Att'y (Sept. 16, 2016) (on file with the Op. Comm.).

[4] See id.

[5] See e.g., TEX. ELEC. CODE § 11.002(a)(4) (qualification as a voter); TEX. GOV'T CODE § 62.102(8) (disqualification from jury).