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A Felon’s Right to Run for Office

Considered as Written: A Felon’s Right to Run for Public Office

On May 22, 2019, the Attorney General of Texas issued Opinion Number KP-0251, answering the age-old question of whether an individual convicted of a felony is eligible to run for office after completing their sentence and having their voting rights restored.

What does the Texas Election Code say about felons running for office?

Section 145.001(a)(4) of the Texas Election Code provides that in order to be eligible to run for a public office in Texas, the person must not have been “finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities.”  A plain reading interpretation of this section of the statute would lead most to believe that a felon becomes an eligible candidate when they are (1) pardoned or (2) released from their resulting disabilities.  Simple enough, right?  But what constitutes being released from a resulting disability?

With the absence of a clear answer to this question, many turned to other Election Code provisions where a felon’s disability is released, and their rights are restored.  The most well-known provision is contained in Section 11.002, “Qualified Voter”.  To be a qualified voter in Texas a person must not have been finally convicted of a felony. See Tex. Elec. Code § 11.002(a)(4).  If the person has been convicted of a felony, they may regain their qualified voter status if the person has “fully discharged [their] sentence,… parole,…or completed a period of probation ordered by any court; or [has] been pardoned or otherwise released from the resulting disability to vote.” Tex. Elec. Code § 11.002 (a)(4)(A)-(B). 

Now equipped with the knowledge that a person convicted of a felony is released from their disability to vote upon the completion of their sentence, it became a common assumption that if the person could vote, then they must have also been released of their disability to run for office under Section 145.001(a)(4).  This interpretation, however, is wrong according to the Texas Attorney General.

According to the Attorney General, Section 141.001(a)(4) does not automatically restore a convicted felon’s eligibility to hold public office upon the completion of the individual’s sentence.  Tex. Att’y Gen. Op. Nos. KP-0251 (2019) at 2. In support of this argument, the Attorney General refers to case law precedent, citing the United States v. Huff, a fifth circuit case which held that a defendant was not otherwise released from their disability of his felony conviction under subsection 141.001(a)(4) when their rights to vote and to possess firearms were restored.  370 F.3d 454 (5th Cir. 2004).  Additionally, the Attorney General supports the basis of his argument on the principles of statutory construction.  The Texas Supreme Court has held that when a court is faced with a challenge to a statute’s constitutionality, it will consider the statute as written, rather than as it operates in practice. See Proctor v. Andrews, 972 S.W.2d 729, 735-736 (Tex. 1998).  Therefore, according to the Attorney General, a construction of the plain language of the Section 141.001(a)(4) concludes that a person’s right to hold office is not automatically restored upon the competition of their sentence. See Tex. Att’y Gen. Op. Nos. KP-0251 (2019) at 2.

Rather, the Attorney General indicated that the only way for an individual convicted of a felony to become eligible to run for office is to:

  1. Have their verdict set aside and have the instrument against the defendant dismissed.  See Tex. Code Crim. Proc. art. 42A.701.  This authorizes a judge, in a case in which the defendant has been placed on community supervision, to set aside the verdict and dismiss the charging instrument against the defendant. See id art. 42A.701(f).  
  1. Receive an Executive pardon under Code of Criminal Procedure article 48.01. See Tex. Code Crim. Proc. article 48.01. One seeking a pardon, after a conviction or successfully completing a term of deferred adjudication community supervision, must first receive a written recommendation from the Board of Pardons and Paroles. See Tex. Code Crim. Proc. art. 48.01(a).  
  1. Have an application for restoration of civil rights granted by the Governor under Code of Criminal Procedure article 48.05.  Article 48.05 permits an individual convicted of certain offenses to submit an application for restoration of any civil rights forfeited under the laws of this state as a result of the conviction.

In Texas, there are several examples where people running for office after being convicted of a felony have been questioned about their qualifications to hold the office.  Recent cases out of Killen City and Austin have brought the issue to the forefront.  In response to these situations, state Representative Jarvis Johnson has submitted House Bill 1316, during the 87th legislative session, which proposes an amendment to the section that would add the wording: “have not been finally convicted of a felony or, if so convicted, has: (A) fully discharged that person’s sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court…”.  This wording directly mirrors that of 11.002(a)(4) regarding the restoration of voting rights.  While this proposed bill would surely clarify the statute, as of May 7, 2021, the bill appears to be at a standstill in the House Election Committee, where it has remained since March 4, 2021. 

This is not the first time that amendments to Section 141.001(a)(4) have been proposed.  Texas lawmakers have placed Section 141.001(a)(4) on their legislative agenda multiple times.  Most recently in 2019 during the 86th legislative session, where Senator Pat Fallon proposed the removal of the words, “or otherwise released from the resulting disabilities,” essentially making it possible for a convicted felony to run only if they have been pardoned.  While the proposed amendment did not pass, it serves as evidence that there are two very different visions of what qualifies a person to hold public office.  

Attorney General Opinion KP-0251 has provided clarification and reassurance to many who may have doubted their interpretation of the statute.  But with the issuance of the opinion and a rise in the number of challenges being made against people running for office with prior felony convictions, it is clear that legislative action may be needed to voice the popular opinion on the subject.  This legislative session currently has two bills proposing amendments to Section 141.001(a)(4).  However, it is unclear whether any of these proposed amendments will gain the support they will need to be passed.  Until then, we will continue to consider the statute as written, rather than as it operates in practice.

Ricardo Benavides, III, Associate Attorney