One of the least discussed areas of criminal law in Texas is a judge’s power to set aside certain straight probation sentences. (Click here to read about the differences between “straight probation” and deferred adjudication.)
Article 42.12, Section 20 of the Texas Code of Criminal Procedure sets out the legal basis for “judicial clemency.” This is sometimes also referred to as setting aside a conviction. Judicial clemency allows for a person who has been placed on straight probation to be discharged from probation without a final felony conviction. The process set forth in Section 20 allows for a judge to set aside a verdict or allow the defendant to withdraw their plea and for the judge to dismiss the accusation releasing the individual from all penalties associated with the offense. A notable exception is that proof of the set-aside conviction will be made known to the judge should the defendant be convicted of any criminal offense in the future.
Judicial clemency is different from the Governor’s power to grant clemency in Texas.
Because there is no adjudication of guilt in cases where an individual successfully completes deferred adjudication, judicial clemency is not available for individuals who were placed on deferred adjudication.
Yes. You cannot have probation discharged through judicial clemency for:
You may ask for judicial clemency when you become eligible to ask for early release from probation or any time thereafter while you are still on probation. Pursuant to Article 42.12 Section 20 of the Code of Criminal Procedure, a person can generally ask for early release from probation after satisfactory completion of one-third of the original supervision period or two years, whichever is less.
You may also ask for judicial clemency for up to 30 days after you were discharged from probation.
First and foremost, your conviction is set aside. In other words, you will no longer have a reportable adjudication or finding of guilt on your record. This means that on job applications, background checks, and applications for housing you can truthfully respond saying you have not been convicted of the offense.
Second, your state rights to own and possess a firearm will be restored. The State cannot prosecute you for possession of a firearm, as it does for instance in Possession of a Firearm by a Felon cases. Note that federal prohibitions will likely still apply if you were convicted of a family violence offense. Pursuant to Section 411.171 Government Code, an adjudication of guilt that has been set aside is not a conviction for purposes of getting a License to Carry (formerly a CHL).
Third, Texas law says that you are “released from all penalties and disabilities resulting from the offense…”
The decision to grant or deny judicial clemency is purely within the judge’s discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996). The Court of Criminal Appeals in Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App 2002) ruled that judicial clemency is a discretionary measure that the trial court judge can grant if trial judge believes” the offender “is completely rehabilitated and is ready to re-take his place as a law-abiding member of society.”
Judicial clemency does not wipe the offense from your record. It simply allows you to avoid the consequences of having a conviction on your record. It would show up on your record just as a dismissal might show up on your record.
Judicial clemency does not seal the offense from your record.
Judicial clemency does not prevent the Texas Department of Human Services from seeing and considering the arrest for purposes of licensing.
If you are currently on probation or were released from probation within the last thirty days and are interested in having our attorneys prepare a Motion to Terminate Probation and Application for Judicial Clemency on your behalf, contact us at (817) 203-2220.