Can someone with a federal conviction restore their Texas civil rights if they also have a misdemeanor on their record?

TX AG Opinion DM-0486: Does a misdemeanor block restoring civil rights after a federal conviction?

Plain-English summary

Texas law disqualifies people convicted of a felony from holding public office, serving on juries, and voting, carrying out the directive in Texas Constitution article XVI, section 2 to keep those convicted of high crimes out of those roles. In 1993 the Legislature added Code of Criminal Procedure article 48.05, which lets a person convicted of a federal offense (other than one involving violence, threat of violence, or drugs) apply to restore the civil rights forfeited in Texas because of that federal conviction. But subsection (b) sets conditions: the person must have completed the federal sentence, the conviction must be at least three years old, and the person must "not . . . [have] been convicted at any other time of an offense under the laws of this state, another state, or the United States." Representative Al Edwards asked whether "offense" in that third condition includes a misdemeanor, so that a person with both the federal conviction and a misdemeanor could not apply.

The Attorney General concluded that "offense" includes misdemeanors, so such a person may not apply. Article 48.05 does not define "offense," and no case or prior opinion had construed it in this context, so the opinion applied ordinary rules of construction. Code of Criminal Procedure article 3.01 says undefined words take their usual common-language meaning, read as broadly as reasonably possible. "Offense," in common and legal usage, covers both felonies and misdemeanors; the Penal Code classifies offenses as felonies or misdemeanors and defines each as a type of "offense." Nothing in article 48.05 limited "offense" in subsection (b)(3) to felonies, and when the Legislature wants to single out felonies it says so (as it did in the expunction statute, article 55.01, enacted in the same 1993 session). So "offense" includes misdemeanors.

The opinion then addressed whether Class C misdemeanors are an exception. Penal Code section 12.03(c) says a Class C misdemeanor conviction "does not impose any legal disability or disadvantage," and a 1990 opinion had described that as a long-standing protection of rights like voting and jury service. One could argue that reading article 48.05(b)(3) to include Class C misdemeanors would strip an applicant of rights contrary to section 12.03(c). The Attorney General was not persuaded, for two reasons. First, the Legislature did not exclude Class C misdemeanors, and it presumably knew about section 12.03(c) (on the books since at least 1973) when it adopted article 48.05 in 1993; if it had wanted to carve them out, it would have said so. Second, it is not the Class C conviction that deprives the applicant of rights; the prior federal offense did that. The no-other-conviction rule is just an additional condition the state may attach when it chooses to restore rights it has no obligation to restore (before 1993, Texas had no procedure to restore civil rights to federal felons at all). So even a Class C misdemeanor blocks an application under article 48.05.

Currency note

This opinion was issued in 1998. 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.

Code of Criminal Procedure article 48.05 and the related Penal Code and Election Code provisions have been amended since 1998. Confirm the current restoration-of-rights procedure and its conditions before relying on any specific rule here.

Who this opinion affected (as of 1998)

People with a prior federal conviction seeking to restore Texas civil rights: The opinion told them that any other conviction, felony or misdemeanor and even a Class C misdemeanor, would disqualify them from applying under article 48.05.

Lawyers and officials handling restoration-of-rights applications: The opinion gave a clear reading of "offense" in article 48.05(b)(3) as including all misdemeanors.

Courts and the pardon process: The opinion clarified that article 48.05 restoration is a form of pardon the state grants on its own conditions, not a right the applicant can demand.

Common questions

Does a misdemeanor block restoring civil rights after a federal conviction?
Yes. The opinion concluded that "offense" in Code of Criminal Procedure article 48.05(b)(3) includes misdemeanors, so a person convicted of both a prior federal offense and a misdemeanor may not apply to restore forfeited civil rights.

Even a Class C misdemeanor?
Yes. The opinion concluded that even a Class C misdemeanor disqualifies an applicant, despite Penal Code section 12.03(c), because it is the federal offense (not the Class C conviction) that strips the rights, and the no-other-conviction rule is just a condition the state attaches to restoration.

Why read "offense" so broadly?
The opinion explained that "offense" in ordinary and legal usage covers both felonies and misdemeanors, the Penal Code defines both as offenses, and the Legislature did not limit the term to felonies in article 48.05(b)(3), though it knew how to do so.

Is the state required to restore these rights at all?
No. The opinion noted that before 1993 Texas had no procedure to restore civil rights to federal felons, and the state may impose whatever conditions it deems appropriate when it chooses to restore them.

Background and statutory framework

Texas Constitution article XVI, section 2 directs the Legislature to exclude from office, jury service, and voting those convicted of bribery, perjury, forgery, or other high crimes (interpreted to mean felonies, per Welch v. State ex rel. Long, 880 S.W.2d 79 (Tex. App.-Tyler 1994, writ denied), and Hayes v. Harris County Democratic Executive Comm., 563 S.W.2d 884 (Tex. Civ. App.-Houston [14th Dist.] 1978, no writ)). Various statutes carry out that directive (Election Code provisions on voter and office disqualification, Government Code provisions on jury disqualification, and the Probate Code on serving as a fiduciary).

Code of Criminal Procedure article 48.05, enacted in 1993, lets a person convicted of a federal offense other than one involving violence, threat of violence, or drugs apply to restore civil rights forfeited in Texas as a result of that federal conviction (a form of pardon under article 48.05(k)). Subsection (b) bars an application unless the person has completed the federal sentence, the conviction is at least three years old, and the person "has not been convicted at any other time of an offense under the laws of this state, another state, or the United States." The question was whether "offense" includes misdemeanors.

Code of Criminal Procedure article 3.01 directs that undefined words take their usual common-language meaning, and the Texas Court of Criminal Appeals has said such words should be read as broadly as reasonably possible, with no narrower meaning imposed under the guise of construction (Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)). "Offense" commonly and legally includes both felonies and misdemeanors (citing dictionary definitions and Yates v. State, 679 S.W.2d 538 (Tex. App.-Tyler 1984, writ ref'd)). The Penal Code defines "felony" and "misdemeanor" as types of "offense" and classifies offenses as one or the other (Penal Code §§ 1.07, 12.02). Because the Legislature did not limit "offense" to felonies in article 48.05(b)(3), as it did in the expunction statute (article 55.01) enacted the same session, the term includes misdemeanors.

On Class C misdemeanors, Penal Code section 12.03(a) classifies misdemeanors as Class A, B, or C by seriousness; Class C misdemeanors are punishable only by a fine not over $500. Section 12.03(c) says a Class C conviction "does not impose any legal disability or disadvantage," which Attorney General Opinion JM-1237 (1990) described as protecting rights like voting and jury service. The Attorney General nonetheless concluded Class C misdemeanors are not excluded from article 48.05(b)(3): the Legislature did not exclude them and is presumed to have known of section 12.03(c) (in place since at least 1973) when it adopted article 48.05 in 1993 (Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991); State v. Kaiser, 822 S.W.2d 697 (Tex. App.-Fort Worth 1991, pet. ref'd)), and it is the prior federal offense, not the Class C conviction, that deprives the person of rights. The no-other-conviction rule is simply a condition on a restoration the state need not grant; before 1993 Texas had no procedure to restore civil rights to federal felons (Beecham v. United States, 511 U.S. 368 (1994); United States v. Thomas, 991 F.2d 206 (5th Cir. 1993)).

Citations

Statutes and constitution:

• Tex. Code Crim. Proc. arts. 3.01, 48.05, 55.01
• Tex. Penal Code §§ 1.05(b), 1.07(23), 1.07(31), 12.02, 12.03, 12.04, 12.21, 12.22, 12.23
• Tex. Gov't Code §§ 62.102(4), (7), 311.011
• Tex. Elec. Code §§ 11.602, 141.001(4)
• Tex. Prob. Code § 78(c)
• Tex. Const. art. XVI, § 2

Cases:

• Welch v. State ex rel. Long, 880 S.W.2d 79 (Tex. App.-Tyler 1994, writ denied)
• Hayes v. Harris County Democratic Executive Comm., 563 S.W.2d 884 (Tex. Civ. App.-Houston [14th Dist.] 1978, no writ)
• Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)
• Yates v. State, 679 S.W.2d 538 (Tex. App.-Tyler 1984, writ ref'd)
• Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991)
• State v. Kaiser, 822 S.W.2d 697 (Tex. App.-Fort Worth 1991, pet. ref'd)
• Beecham v. United States, 511 U.S. 368 (1994)
• United States v. Thomas, 991 F.2d 206 (5th Cir. 1993)

Prior Attorney General opinions:

• Attorney General Opinion JM-1237 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0486
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0486.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

November 10, 1998

The Honorable Al Edwards
Chair, Committee on Rules and Resolutions
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-486

Re: Whether an individual convicted of a prior federal offense may apply for restoration of civil rights forfeited in the state as a result of the federal conviction if the individual has also been convicted of a misdemeanor offense (RQ-1072)

Dear Representative Edwards:

You request an opinion from this office about restoration of civil rights for an individual convicted of a federal offense. Specifically, you ask whether such an individual may apply for restoration of civil rights forfeited in the state as a result of the federal conviction if the individual has also been convicted of a misdemeanor. [Footnote: You do not specify the misdemeanor offense.] We conclude in the negative for the following reasons.

We start with some background. Texas Constitution article XVI, section 2 directs the legislature to enact laws "to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." [Footnote: For the purposes of the constitutional provision, "high crimes" has been interpreted to refer to felonies. Welch v. State ex rel. Long, 880 S.W.2d 79, 82 (Tex. App.--Tyler 1994, writ denied); Hayes v. Harris County Democratic Executive Comm., 563 S.W.2d 884, 885 (Tex. Civ. App.--Houston [14th Dist.] 1978, no writ). You do not ask and we do not consider whether article 48.05(b)(3) is consistent with Texas Constitution article XVI, § 2.] Pursuant to this constitutional authority, the legislature has enacted laws disqualifying an individual convicted of a felony from holding a public office, serving on juries, and voting in elections, among other things. [Footnote: See Elec. Code §§ 11.602 (disqualification as voter), 141.001(4) (disqualification from public office); Gov't Code § 62.102(4), (7) (disqualification from jury); Prob. Code § 78(c) (disqualification from serving as fiduciary).]

Article 48.05(a) of the Code of Criminal Procedure, enacted in 1993, [Footnote: See Act of May 19, 1993, 73d Leg., R.S., ch. 900, § 7.01, 1993 Tex. Gen. Laws 3586, 3762.] provides that an individual convicted of a federal offense other than an offense involving violence, threat of violence, or drugs may, except as provided by subsection (b), apply for restoration of any civil rights forfeited in the state as a result of the federal conviction ("prior federal offense"). [Footnote: Restoration of civil rights under this article is a form of pardon that restores all civil rights forfeited under state law as a result of the prior federal offense, except as otherwise provided in the certificate of restoration. Code Crim. Proc. art. 48.05(k).] Subsection (b) provides as follows:

(b) An individual may not apply for restoration of civil rights under this article unless:

(1) the individual has completed the sentence for the federal offense;

(2) the conviction occurred three or more years before the date of application; and

(3) the individual has not been convicted at any other time of an offense under the laws of this state, another state, or the United States. [Emphasis added.]

Your question requires us to determine whether the term "offense" as used in article 48.05(b)(3) includes misdemeanors.

Article 48.05 does not define the term "offense" for the purposes of subsection (b)(3). Additionally, no Texas case or an attorney general opinion has construed the term in this context. The following principles of statutory interpretation, however, guide us in construing this term.

Code of Criminal Procedure article 3.01 directs that "all words, phrases, terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined." [Footnote: See also Penal Code § 1.05(b); Gov't Code § 311.011.] As explained by the Texas Court of Criminal Appeals, "when read in context, such words should be open to the broadest possible understanding to which they are reasonably susceptible in the English language." [Footnote: Bingham v. State, 915 S.W.2d 9, 10 (Tex. Crim. App. 1994).] A different and narrower interpretation may not be imposed under the guise of statutory construction. [Footnote: Id.] Application of these principles leads us to conclude that "offense" as used in article 48.05(b)(3) includes misdemeanors.

"Offense" as commonly and broadly understood includes both felonies and misdemeanors. Webster's Ninth New Collegiate Dictionary defines "offense" as "an infraction of law; esp.: MISDEMEANOR . . . ." [Footnote: Webster's Ninth New Collegiate Dictionary 819 (1990).] Black's Law Dictionary defines the term as "[a] felony or misdemeanor; a breach of the criminal laws." [Footnote: Black's Law Dictionary 915 (5th ed. 1979); see also Yates v. State, 679 S.W.2d 538, 540 (Tex. App.--Tyler 1984, writ ref'd) ("offense" in statute allowing denial of bail in appeal from felony conviction and commitment to custody if there is good cause to believe defendant is likely to commit "another offense" includes felony or misdemeanor); 29 Words & Phrases 373 (1972) (other cases cited under OFFENSE, Felonies and misdemeanors).] Additionally, while neither the Penal Code or the Code of Criminal Procedure specifically define "offense," the definitions of misdemeanors and felonies make it clear that both are encompassed by the term offense. [Footnote: See Penal Code §§ 1.07(23) (defining "felony" as offense so designated by law or punishable by death or confinement in penitentiary), (31) (defining misdemeanor as offense so designated by law or punishable by fine, by confinement in jail, or by both), 12.02 (designating offenses as felonies or misdemeanors).] Article 12.02 of the Penal Code classifies offenses as felonies or misdemeanors. Felonies are "offense[s] so designated by law or punishable by death or confinement in a penitentiary." [Footnote: Penal Code § 1.07(23).] Misdemeanors are "offense[s] so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail." [Footnote: Id. § 1.07(31).] Finally, nothing in the legislative language of article 48.05 restricts the term "offense" as used in subsection (b)(3) to refer only to felonies and exclude misdemeanors. If the legislature had intended to limit subsection (b)(3) to include only felonies and exclude misdemeanors, it would have expressly so provided as it has done in other instances. [Footnote: Compare Code Crim. Proc. art. 48.05(b)(3) with id. art. 55.01(a)(C) (person arrested for felony or misdemeanor entitled to have arrest records and files expunged if acquitted or convicted and pardoned and if "he has not been convicted of a felony in the five years preceding the date of arrest[,]" among other things) (emphasis added). The legislature enacted article 48.05 and amended 55.01 in the same legislative session as part of the 1993 Penal Code amendments. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, §§ 7.01, 7.02, 1993 Tex. Gen. Laws 3586, 3762-63.] Therefore, we conclude that the term "offense" as used in article 48.05(b)(3) by definition includes misdemeanors.

While article 48.05 by its term does not exclude any misdemeanors from "offenses" for the purposes of subsection (b)(3), arguably class C misdemeanors are nonetheless excluded from article 48.05(b)(3) because of Penal Code section 12.03(c). Section 12.03(a) of the Penal Code classifies misdemeanors according to the seriousness of the offense into three categories: class A misdemeanors, class B misdemeanors, and class C misdemeanors. Class A and B misdemeanors are punishable by fine, confinement in jail, or by both. [Footnote: Penal Code §§ 12.21 (class A misdemeanor punishable by fine not to exceed $4,000, jail confinement not to exceed one year, or both), .22 (class B misdemeanor punishable by fine not to exceed $2,000, jail confinement not to exceed 180 days, or both).] Class C misdemeanors are punishable only by a fine not to exceed $500. [Footnote: Id. § 12.23.] Section 12.03(c) provides that "[c]onviction of a Class C misdemeanor does not impose any legal disability or disadvantage." In Attorney General Opinion JM-1237, this office noted that section 12.03(c) is a long-standing feature of the state's penal laws and is designed to ensure that "conviction of a Class C (justice court) misdemeanor does not deprive the defendant of his rights to vote, hold public office, serve on a jury, or other rights of citizenship." [Footnote: Attorney General Opinion JM-1237 (1990) at 3 (concluding, however, that even assuming employment bar as to class C misdemeanors at elderly and disabled facility pursuant to ch. 106 of Hum. Res. Code is "legal disability or disadvantage," more specific and recently enacted ch. 106 would control over Penal Code § 12.04).] Thus, if offense in article 48.05(b)(3) is read to include class C misdemeanors, arguably an otherwise qualified applicant becomes ineligible for restoration of civil rights solely because of the class C misdemeanor conviction and is accordingly "deprived" of his civil rights contrary to Penal Code section 12.03(c).

Although the above argument may have some merit, we remain unpersuaded that the legislature intended to exclude class C misdemeanors from article 48.05(b)(3) for the following reasons. First, the legislatively adopted language does not exclude these misdemeanors. [Footnote: Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (when interpreting statutes, court seeks to effectuate collective legislative intent or purpose; primary indicator of intent is statute's literal language because it best indicates legislature's collective intent at time legislature adopted statute).] Penal Code section 12.03(c) is a long-standing feature of the state's penal laws. It has been in existence since at least 1973. [Footnote: See Act of May 24, 1973, 73d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 906.] Presumably, the Texas Legislature was aware of that statute's existence when it adopted article 48.05 in 1993. [Footnote: See 67 Tex. Jur. 3d Statutes § 134 (1989) (may be presumed that legislature aware of existing statutes).] If the legislature intended that article 48.05(b)(3) not include class C misdemeanors, we believe it would have so expressly provided. [Footnote: See Boykin, 818 S.W.2d at 785; State v. Kaiser, 822 S.W.2d 697, 700 (Tex. App.-Fort Worth 1991, pet. ref'd) (existence or nonexistence of particular intent of statute may be inferred from fact that statute does not contain certain provision).] It did not. Second, it is not the conviction of the class C misdemeanor that deprives an applicant under section 48.05 of his or her civil rights. Rather, it is the prior federal offense that deprived the individual of these rights. The requirement that the applicant not have been convicted of any other offense, including a class C misdemeanor under Texas law, is merely an additional condition imposed by the state for restoration of the rights forfeited under state law as a result of the prior federal offense. We are unaware of any authority that requires the state to restore the forfeited civil rights or that would prevent the state from imposing such conditions as it deems appropriate when the state chooses to restore these rights. Before 1993, there were no state procedures for restoring civil rights for federal felons. [Footnote: See Act of May 27, 1993, 73d Leg., R.S., ch. 900, § 7.01, 1993 Tex. Gen. Laws 3586, 3762; Beecham v. United States, 511 U.S. 368, 372 (1994) (many jurisdictions, including Texas, have no procedures for restoring forfeited civil rights to federal felons); United States v. Thomas, 991 F.2d 206, 213-14 (5th Cir. 1993) (Texas neither actively nor passively restores all or essentially all of forfeited civil rights to federal felons).]

SUMMARY

An individual convicted of a prior federal offense may not apply for restoration of civil rights forfeited in the state as a result of the federal conviction if the individual has also been convicted of a misdemeanor offense.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Sheela Rai
Assistant Attorney General