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What Is Judicial Clemency?

Under Texas law, there are certain cases where a judge may set aside a defendant’s criminal conviction while they are still serving a term of community supervision (i.e., probation). This is informally known in legal circles as “judicial clemency,” although that exact term is not used in the law. As the Texas Court of Criminal Appeals explained in a 2002 decision, Cuellar v. State, judicial clemency may occur when “a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society.”

The decision to grant judicial clemency is completely within the discretion of the trial judge. In other words, a defendant does not earn the “right” to judicial clemency based on good behavior while on probation. After all, if a person is on probation, they are expected to abide by all of the terms and conditions of their release regardless.

Below is a brief explanation of the judicial clemency process, including the cases where it is not an option, and how judicial clemency differs from other forms of clemency or pardon under Texas law.

The Basics of Judicial Clemency

Although the term “judicial clemency” is not used in any statute, it is based on a specific law, specifically Article 42A.701 of the Texas Code of Criminal Procedure. This article addresses situations where a defendant convicted of a criminal offense may seek a “reduction or termination” of his or her probation.

By law, a defendant is only eligible to seek a reduction or termination after “satisfactorily” completing at least one-third of their original probation term or at least two years, whichever is less. For example, if a defendant is sentenced to serve three years community supervision, she could ask for a reduction or termination after just one year. A defendant may also request judicial clemency after completing the full term of his or her probation, but this typically must be done within 30 days of the end of community supervision.

Once a defendant requests a review of their probation, the judge must notify the district attorney. The judge will then conduct a review to decide whether or not the defendant has successfully complied with their probation.

If the court does decide to discharge the defendant from community supervision, the judge must then decide whether or not to “set aside” the original conviction, i.e. grant judicial clemency. This applies to both guilty pleas entered voluntarily by the defendant and jury verdicts following a trial. If clemency is granted, it has the legal effect of dismissing “the accusation, complaint, information, or indictment against the defendant.” The defendant is then “released from all penalties and disabilities resulting from the offense.”

Now, this does not completely erase the defendant’s criminal record in the way an expunction would. There is still a public record of the original arrest, but the case will be listed as “dismissed” and not resulting in a conviction. And proof of the original conviction (or guilty plea) will still be available to the court in the event the defendant is convicted of a future crime. Texas officials may also consider the arrest in making certain occupational licensing decisions regarding the defendant.

On the other hand, judicial clemency can restore a person’s legal right to possess and carry firearms under Texas law. Indeed, this was the subject of the Cuellar case. The defendant pleaded guilty to felony drug possession in 1976. A judge set aside the conviction in 1981 after the defendant completed his five-year community supervision term. Fifteen years later, the defendant was charged with “unlawful possession of a firearm by a felon.” But the Court of Criminal Appeals held that since the conviction was set aside, it did not bar the defendant from owning a gun.

When Is Judicial Clemency in Texas Not an Option?

Although most felony convictions can be set aside under the process discussed above, the law does not permit the use of judicial clemency for the following crimes:

  • intoxication-related offenses, including DWI, intoxication assault, and intoxication manslaughter;
  • any offense where conviction requires the defendant to register as a sex offender; or
  • so-called 3G felonies, such as capital murder, murder, aggravated robbery, or violent crimes involving injury to a child, elderly, or disabled person.

Judicial vs. Executive Clemency

Judicial clemency should not be confused with the executive clemency power granted to the governor of Texas. The Texas Constitution authorizes the governor to issue “reprieves and commutations of punishment and pardons” to a convicted defendant on the recommendation of the state Board of Pardons and Paroles. This clemency power is much broader in scope than judicial clemency, as the governor can issue full pardons for any crime–aside from treason and offenses subject to impeachment–including 3G felonies like murder.

If you have additional questions or concerns about how the judicial clemency process works in Texas and would like to speak with a qualified Collin County criminal defense lawyer, contact Rosenthal Kalabus & Therrian today. Our criminal lawyers in Collin County are eager to assist you throughout each step of your case.

Written by: Rosenthal Kalabus & Therrian Last Updated : May 8, 2020