We read the recent opinion in Hall v. State and discussed the judicial clemency aspect of the case with some of our fellow defense counsel. Many new counsels were unaware that a defendant who successfully completed probation conditions may, in most cases, file a motion to terminate probation and obtain an order from the judge allowing the defendant to withdraw the plea, dismiss the indictment or information, and release and discharge the defendant from all penalties and disabilities resulting from the proceedings. This termination may be obtained, in most cases, prior to the end of the defendant’s probation period and includes both regular and deferred probation. We thought that an article addressing this opportunity along with a sample motion to terminate probation and order would be helpful for new attorneys unaware of this procedure.
Probation (now called community supervision but we still prefer to call it probation) in Texas is governed by Article 42.12 of the Texas Code of Criminal Procedure. Termination of deferred adjudication probation is governed by Article 42.12, § 5. Termination of regular probation is governed by Article 42.12, § 20. Both sections of 42.12 regarding termination of probation are basically the same, but you should read the pertinent section prior to filing a motion to terminate probation, be it either for regular or deferred probation. We will discuss regular probation for the purposes of this article since we have always used both sections identically and merely changed the section number in the motion to terminate probation.
Article 42.12, § 20, creates two distinct ways a court may terminate a person’s regular probation. The most common type is where the judge simply discharges the person from regular probation and the underlying conviction remains. The other type of discharge is termed “judicial clemency” and is discussed at § 20(a). Judicial clemency is where the court discharges the person from probation and sets aside the verdict or permits the defendant to withdraw his plea, dismissing the accusation, complaint, information, or indictment against the defendant and returning all rights to the defendant. Tex. Code Crim. Proc. art. 42.12, § 20(a). The defendant who receives judicial clemency is thereafter “released from all penalties and disabilities resulting from the offense or crime of which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.” Id. The following cases illustrate just how beneficial judicial clemency may be for your client.
Judicial Clemency Case Law
The recent case of Hall v. State, No. 06-12-00091-CR, 2013 Tex. App. Lexis 1057 (Tex. App.—Texarkana, February 6, 2013, no pet. h.), held that a conviction set aside pursuant to judicial clemency was not a reportable conviction requiring a duty to register as a sex offender. Id. On January 30, 1981, Hall was convicted of “Aggravated Rape, a First-Degree Felony.” Id. Hall’s sentence of seven years’ imprisonment was suspended, and he was placed on probation for seven years. Id. At that time, there was no statutory duty to register as a sex offender, and the terms and conditions of his probation did not require him to do so. Id. In 1988, after finding “that all conditions of probation had been satisfactorily fulfilled,” the trial court entered an “Order Setting Aside Judgement of Conviction Dismissing the Indictment and Discharging Defendant from Probation.” Id.
The Hall court characterized the Defendant’s termination of probation under Article 42.12, § 20 as judicial clemency because the order set aside the judgment of Hall’s aggravated rape conviction, dismissed the indictment, discharged the Defendant from probation, and stated, “[T]he Defendant is hereby released from all penalties and disabilities resulting from the Judgement of Conviction in this case.” Id. The Hall court reasoned that because the indictment was dismissed and the conviction was set aside pursuant to Article 42.12, § 20, the conviction ceased to exist. Id. Recognizing the judicial clemency that was afforded to the Defendant in 1988, the Court of Appeals concluded that there was no underlying conviction which could serve as the predicate conviction activating the sex-offender registration requirement. Id.
The Hall decision relied upon the Texas Court of Criminal Appeals decision Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). Cuellar held that a felony conviction set aside pursuant to Article 42.12, § 20, cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. Id. at 816. In 1976, Cuellar pled guilty to possession of heroin. Id. The trial court sentenced him to five years’ imprisonment, suspended the sentence, and placed Cuellar on probation for five years. Id. On September 1, 1981, the trial court entered an order setting aside the judgment of conviction and dismissing the indictment (judicial clemency). Id. In 1996, Cuellar was arrested for felon in possession of a firearm. Id. He was convicted and appealed on the contention that “since the 1976 conviction was set aside pursuant to Article 42.12, § 20, there was no underlying felony conviction to support a conviction under § 46.04 (felon in possession of a firearm).” Id. at 817. The court agreed, explaining that there are “two entirely different types of ‘discharge’ from probation under Article 42.12, § 20.” Id. at 818. The court stated:
First, there is the usual method of discharge. When a person placed on probation has completed his entire term of probation and has satisfactorily fulfilled all of the conditions of probation, the trial judge shall discharge the defendant from probation . . . That person has paid his debt to society and, in effect, “graduates” from probation. However, that person has been convicted of a felony, even though he never went to prison and, for some purposes, it is not a “final” felony conviction.
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There is, however, a second, less common type of discharge under Article 42.12, § 20. This second type of discharge is not a right but rather is a matter of “judicial clemency” within the trial court’s sole discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996). . . . That is, when a trial judge believes that a person on probation is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may “set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.” Tex. Code Crim. Proc. 42.12, § 20(a); State v. Jimenez, 987 S.W.2d 886, 888 n.2 (Tex. Crim. App. 1999) (“Under Texas law, successful completion of probation allows the judge to dismiss some charges without a final conviction”). These words are crystal clear. There is no doubt as to their meaning. See Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom “released from all penalties and disabilities” resulting from the conviction. Art. 42.12, § 20(a).
Id. [emphasis added].
According to Cuellar, “[O]nce the trial court judge signed the Article 42.12, § 20 order, the felony conviction disappears.” Id. The court went on to state that a person whose conviction is set aside pursuant to judicial clemency is not a convicted felon. Id. Therefore, a felony conviction set aside pursuant to judicial clemency cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. Id.
Judicial clemency has the same effect on the federal law prohibiting a felon from possessing a handgun. A conviction set aside via judicial clemency (Article 42.12, § 20) cannot be used as a predicate offense under federal law preventing a felon from possessing a handgun. See United States v. Beck, No. A-09-CR-116-LY, 2009 U.S. Dist. Lexis 74424 (W.D. Tex. Aug. 18, 2009). In Beck, the defendant was charged in a two-count indictment. Count 2 charged being a felon in possession of a firearm that had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Id. Beck filed a motion to dismiss the indictment, arguing that the underlying felony conviction was dismissed pursuant to judicial clemency and therefore no longer existed. Id. Beck was previously convicted of two separate Texas felonies, which the government relied upon to prove that he was a convicted felon. However, Beck received probation for both felonies and upon termination the trial court set aside the conviction, allowed Beck to withdraw his plea of guilty, and dismissed the underlying indictments. Id.
The Beck court first pointed out that the federal felon in possession of a handgun statute is governed by the law of the convicting jurisdiction:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Firearms Owners’ Protection Act, ch. 44, § 101, 100 Stat. 449, 449–50 (1986) (current version at 18 U.S.C. § 921(a)(20) (2000)); see also Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994) (what constitutes conviction is governed by the law of the convicting jurisdiction).
Because Beck’s convictions occurred in Texas, Texas law governed whether the convictions may serve as predicate offenses. See United States v. Daugherty, 264 F.3d 513, 515 (5th Cir. 2001). The Beck court relied upon Cuellar, supra, to hold that the prior “convictions” could not constitute prior felonies for purposes of the federal felon in possession of handgun statute. Id. The court explained its holding:
Each of the orders regarding Beck’s previous convictions is consistent with the second, discretional type of discharge. The 1980 order specifically permits Beck to withdraw his guilty plea and dismisses the indictment against him. The 1998 order sets aside the conviction, dismisses the indictment, and further releases Beck “from all penalties and disabilities resulting from the crime.” The effect of the affirmative, individualized actions of the state trial courts is to place Beck in the same position as one who was never convicted. The Government may not use either of Beck’s prior felony convictions as a predicate offense to support Count 2 of the indictment. As a result, Beck is under no disability or restriction in regard to the possession of firearms.
The Language of 42.12, § 20.
Texas Code of Criminal Procedure 42.12 , § 20, reads in pertinent part:
Sec. 20. Reduction or Termination of Probation.
(a) At any time after the defendant has satisfactorily completed one-third of the original probation period or two years of probation, whichever is less, the period of probation may be reduced or terminated by the judge. On completion of one-half of the original probation period or two years of probation, whichever is more, the judge shall review the defendant’s record and consider whether to reduce or terminate the period of probation . . . Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty, except that:
(1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and
(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that the defendant previously has received probation under this article in issuing, renewing, denying, or revoking a license under that chapter.
(b) This section does not apply to a defendant convicted of an offense under Sections 49.04–49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, or a defendant convicted of a felony described by Section 3g.
Tex. Code Crim. Proc. art. 42.12, § 20 [emphasis added].
Once the trial court signs the Article 42.12, § 20, order, the felony conviction disappears, except as specifically noted in subsections (1) and (2). Cuellar, supra. Under subsection (1), if the discharged person is subsequently convicted of another criminal offense, the previously dismissed “former” felony conviction will resurrect itself and be made known to the trial judge. Id. Under subsection (2), if the discharged person is applying for a license to run a child care facility or currently has such a license, the Texas Department of Human Services, in issuing, renewing, denying, or revoking such a license, may consider the fact that the person had previously received probation. See Cuellar, supra.
Some offenses are specifically precluded from judicial clemency. It is unavailable to defendants convicted of offenses described in § 20(b). A defendant convicted of any intoxication offense (DWI, Intoxicated Assault/Manslaughter, etc.) is ineligible for judicial clemency. Id. Likewise, any conviction requiring sex offender registration is ineligible for judicial clemency. Id. Judicial clemency is also unavailable for 3g offenses.
How to Obtain Judicial Clemency
You will not get judicial clemency under Article 42.12, §§ 5 or 20, unless you ask for it. The defendant must be eligible for early termination in that he has satisfactorily served one third of the regular probation or two years of probation, whichever is less. Tex. Code Crim. Proc. art. 42.12, § 20(a). Remember that there is no equivalent minimum time requirement in most cases for deferred adjudication probation under 42.12, § 5. It is our practice to incorporate the judicial clemency language from 42.12, § 20, into both the motion and order terminating either the regular probation or deferred adjudication probation under 42.12, §§ 5 or 20. A sample motion and order to terminate deferred adjudication probation follow for your use, and may easily be modified for regular probation. Good luck to you on obtaining judicial clemency for your eligible clients.