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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10789
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LAWRENCE CHRISTOPHER FIX,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
August 29, 2001
Before JOLLY, SMITH, and WIENER,
I.
Circuit Judges.
In 1981, Fix pleaded guilty of arson in state
court and was sentenced to three years' proba-
JERRY E. SMITH, Circuit Judge:
tion. In 1984, the state court granted his mo-
tion to set aside the sentence of probation,
Lawrence Fix appeals his conviction of vio-
grant a new trial, and dismiss the matter.
lating 18 U.S.C. § 922(g)(1) (2001), which
prohibits convicted felons from possessing
In May 2000, Fix was indicted in the instant
firearms "in and affecting" interstate com-
federal proceeding for being a felon in
merce. We reverse and remand.
possession of a firearm. He and the govern-
ment stipulated to his felony conviction for ar-
son and to the facts surrounding his arrest. Fix

filed a motion to dismiss the federal in-
the verdict or permit the defendant to
dictment, asserting that his arson conviction
withdraw his plea, and shall dismiss the
could not serve as a predicate offense under 18
. . . indictment against the defendant,
U.S.C. § 921(a)(20) because the state court
who shall thereafter be released from all
had set aside his probation. The federal dis-
penalties and disabilities resulting from
trict court denied that motion, citing United
the offense or crime of which he has
States v. Padia, 584 F.2d 85, 86 (5th Cir.
been convicted . . . .
1978). Fix entered a conditional plea of guilty
and, pursuant to FED. R. CRIM. P. 11(a)(2), re-
TEX. CODE CRIM. PROC. ANN. art. 42.12,
served the right to appeal the denial of his mo-
§ 20(a) (Vernon Supp. 2001).
tion to dismiss the indictment.
Fix claims that his previous felony convic-
II.
tion cannot serve as a predicate offense under
Fix presents one issue on appeal: "Do[] the
§ 921(a)(20) because he successfully complet-
prior proceedings in state court qualify [Fix]
ed probation for that conviction. Consequent-
for the exemption contained in 18 U.S.C.
ly, he argues, the district court erroneously de-
§ 921(a)(20)?" That exemption, in regard to
nied his motion to dismiss the indictment.1
whether a perso n found in possession of a
firearm is still considered a "felon" under
No person "who has been convicted in any
§ 922(g)(1), states:
court of a crime punishable by imprisonment
for a term exceeding one year" may possess a
What constitutes a conviction of such a
firearm "in or affecting" interstate commerce.
crime shall be determined in accordance
§ 922(g)(1).2 The law of the jurisdiction in
with the law of the jurisdiction in which
the proceedings were held. Any convic-
tion which has been expunged, or set
1 Fix claims that his rights were restored by
aside or for which a person has been
individualized certification under art. 42.12, § 20.
pardoned or has had civil rights restored
We disagree. Fix received an order from a Texas
shall not be considered a conviction for
state court granting his motion and stating that he
purposes of this chapter, unless such
would "be released from further probation, granted
pardon, expungement, or restoration of
a new trial, and said probation be set aside, and
civil rights expressly provides that the
that this cause be dismissed from the docket of this
person may not ship, transport, possess,
Court." The order did not state that the conviction
or receive firearms.
was expunged or erased. Thus, Fix's civil rights
were passively restored by operation of law under
18 U.S.C. § 921(a)(20) (2001).
art. 42.12, § 20.
2 Section 922(g)(1) provides:
Fix argues that TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 20(a) completely restores
(g) It shall be unlawful for any personSS
his civil rights. That statute provides:
(1) who has been convicted in any court of,
If the judge discharges the defendant un-
a crime punishable by imprisonment for a
der this section, the judge may set aside
term exceeding one year; . . .
(continued...)
2

which the proceedings were held determines
fendant's rights "were passively revived by
what constitutes a crime.3 So, Texas law de-
operation of law, not by individualized certifi-
termines whether Fix was a convicted felon for
cation." Id. at *7. We concluded, based on
purposes of § 922(g)(1). See, e.g., United
applicable federal and Texas precedent, that,
States v. Dupaquier, 74 F.3d 615, 617 (5th
for purposes of § 922(g)(1), the defendant "re-
Cir. 1996).
mained convicted even after successfully com-
pleting probation." Id. at *13 (footnote omit-
III.
ted).
In United States v. Daugherty, No.
00-20871, 2001 U.S. App. LEXIS 19201 (5th
Fix accurately argues that his circumstance
Cir. Aug. 28, 2001), we upheld a conviction
is materially distinguishable from that in
under § 922(g)(1) in a somewhat different sit-
Daugherty. Specifically, as we have noted, the
uation. The defendant had served his period of
state court order discharging Fix from pro-
probation, and the state court merely ordered
bation also granted him a new trial and direct-
that "the Defendant is discharged from
ed that the cause be dismissed. As Fix notes,
probation." Id. at *1 n.1. As here, the de-
TEX. CODE CRIM. PROC. ANN. art. 40.08 stat-
ed, at the time of Fix's dismissal,4 that "[t]he
effect of a new trial is to place the cause in the
2(...continued)
same position in which it was before any trial
had taken place. The former conviction shall
to ship or transport in interstate or foreign
be regarded as no presumption of guilt nor
commerce, or possess in or affecting com-
shall it be alluded to in the argument."
merce, any firearm or ammunition; or to
receive any firearm or ammunition which
In its brief on appeal, the government
has been shipped or transported in interstate
makes no effort to address art. 40.08. Instead,
or foreign commerce.
it argues that "[w]hile the government does
not dispute that Fix's core civil rights have
18 U.S.C. § 922(g)(1) (2001).
been restored by operation of Texas law, the
3 Beecham v. United States, 511 U.S. 368, 371
state's restrictions on his right to possess
(1994).
firearms trigger the "unless clause" of § 921-
(a)(20), and preclude him from receiving the
What constitutes a conviction of such a
benefit of the provision." This argument is
crime shall be determined in accordance
untenable.
with the law of the jurisdiction in which the
proceedings were held. Any conviction
We need never reach the "unless clause" in
which has been expunged, or set aside or for
Fix's case, because, by operation of Texas law,
which a person has been pardoned or has
it is as though he had never been convicted.
had civil rights restored shall not be
Once a motion for new trial is granted, "the
considered a conviction for purposes of this
case remained . . . in the same position as
chapter, unless such pardon, expungement,
or restoration of civil rights expressly pro-
vides that the person may not ship, trans-
port, possess, or receive firearms.
4 This article was repealed in 1986 but was in
effect at the time of Fix's discharge. See Acts
18 U.S.C. § 921(a)(20) (2001).
1985, 69th Leg., ch. 685, § 4.
3

before the trial . . . took place." Reed v. State,
516 S.W.2d 680, 682 (Tex. Crim. App. 1974)
(citing art. 40.08).
It may have been a fortuity that the state
court added the grant of a new trial to the or-
der terminating probationary status, but we
cannot ignore the effect of that action. For ex-
ample, "if a motion for new trial is granted,
jeopardy does not attach." Franklin v. State,
693 S.W.2d 420, 432 (Tex. Crim. App. 1985)
(citing art. 40.08; Whitehead v. State, 286
S.W.2d 947 (Tex. Crim. App. 1956)); see also
Carter v. State, 848 S.W.2d 792, 796 (Tex.
App.SSHouston [14th Dist.] 1993, pet. ref'd).
This completely undermines the government's
assertion that Fix's argument based on art.
40.08 "begs the question of whether the state
could try him a second time." By making this
pronouncement, however, the government
does reveal that it believes the question of jeo-
pardy is significant here.
In summary, because the state court grant-
ed Fix a new trial,5 he stands in the shoes of
one who was never convicted. Accordingly,
he cannot be under disability or restriction in
regard to the possession of firearms. There is
no predicate offense, so the conviction of pos-
session of a firearm by a felon cannot stand.
The judgment of conviction and sentence is
REVERSED, and this matter is REMANDED
for further appropriate proceedings.
5 We limit this decision to the precise situation
in which a defendant is granted a new trial under
Texas law at a time when he was subject to art.
40.08. We express no view on any other
hypothetical circumstances.
4