Under Texas state law, a person who was convicted of a felony and placed on probation (now called “community supervision” in TX) may, after successfully completing the probation/supervision, be given something called “judicial clemency” by the trial court. This judicial clemency relief is embedded in Article 42.12, Section 20(a), of the Texas Code of Criminal Procedure, which provides that:


At any time after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge [. . .] Upon satisfactorily fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, 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.


Ten years ago, in Cuellar v. State (70 S.W.3d 815 (Tex. Crim. App. 2002), the Texas Court of Criminal Appeals (the state’s highest court on criminal issues) coined the term “judicial clemency” for that legal relief/remedy/benefit in Article 42.12, § 20(a). The Court clarified that judicial clemency is a discretionary measure that a trial court may grant an offender who successfully completed his probation/community supervision if the “trial judge believes” the offender “is completely rehabilitated and is ready to re-take his place as a law-abiding member of society.”. In other words, judicial clemency is granted based on the offender’s showing of reform or rehabilitation.


The practical benefit of judicial clemency is not necessarily that it actually fully “sets aside” or removes the conviction, but that it releases the offender “from all penalties and disabilities resulting from the offense.” What this means is that under many (not all) circumstances the offense may not be used against the person in the future. For example, in the Cuellar decision, the Court ruled that the state cannot use a person’s previous felony offense to prosecute him under the state’s felon-in-possession of a firearm ban if he has received judicial clemency for that offense (i.e., if he received a document from the court stating that the charge is dismissed and he is “released from all penalties and disabilities”). This is because, according to the Court, a conviction that has been given judicial clemency is no longer a “conviction” for purposes of the Texas criminal ban against being a felon-in-possession of a firearm.


However, judicial clemency—while beneficial—has its limits and exceptions. It does not make a person’s guilt disappear for all purposes. For one, judicial clemency does not have any effect on the sentence or punishment that was given for the offense. In other words, a defendant cannot use it to shorten his sentence or otherwise get a more lenient sentence. This is because a person is not eligible for judicial clemency until he/she has already completed his sentence and discharged from probation/community supervision.


Additionally, Article 42.12, § 20(a), expressly provides that the offense must still be disclosed to any court in the event the person is convicted of another offense in the future. Thus, any court can presumably consider an offense that has been granted judicial clemency for sentencing purposes in future cases. As the Court said in Cuellar, this means that “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.”


Moreover, unlike in cases where a person is acquitted of the offense, completes deferred adjudication for the offense, or is convicted but later pardoned for the offense, judicial clemency does not lead to the sealing or expungement of the records in any way. The existence of the incident and related court records will continue to be open to the public and show up on standard background checks just like any “normal” criminal matter.


Thus, judicial clemency is truly more limited than it seems—and certainly not as broad as what its sweeping statutory language (Article 42.12, § 20(a)) suggests. As a practical matter, judicial clemency is beneficial to an ex-felony-offender in dealing with the long-term collateral consequences of the offense—such as, for example, the right to bear arms. It has no effect on the direct or immediate consequences (i.e., the sentence/punishment imposed) for that offense.


For those reasons, HIGBEE & ASSOCIATES (“H&A”) has long taken the position that a trial court has the authority to grant judicial clemency to a person, even if it has been years since he/she completed the probation/community supervision and the criminal case has closed. Among other reasons, we see this is as consistent with the long-term, rehabilitative focus behind judicial clemency, as well as consistent with the statutory language which does not place any express limitations on when a trial court may grant it. Many trial courts across Texas have agreed with this position; consequently, H&A has successfully obtained judicial clemency for many clients in Texas.


Meanwhile, state prosecutors all across Texas have vigorously opposed giving ex-offenders judicial clemency if it has been many years since the probation/community supervision was completed. They argue that trial courts can only grant judicial clemency at the time the offender is discharged from probation/community supervision or during the short window period that follows, but not after. This is because, they argue, a trial court generally only has a short “leash” over any orders/judgments that were made in a criminal case. This period, known as the trial court’s “plenary power”, is generally 30 days from the day the defendant is discharged from his sentence. Once that period has passed, prosecutors argue a trial court cannot go back and grant judicial clemency for the offender because this would be the same as modifying the original criminal judgment.


In December 2011, one of Texas’ fourteen intermediate appellate courts, the Tenth District Court of Appeals, issued a ruling, State v. Fielder (No 10-11-00162-CR (Tex. App.—10th Dist., 2011), in which it agreed with the prosecutors’ position. The decision was the first (and to date, still the only) decision of its kind in Texas. Although it is technically binding only on courts in counties that are within the Tenth District, it has given new ammunition for prosecutors in counties all across Texas to use against requests for judicial clemency.


H&A strongly disagrees with the prosecutors’ positions and feels that judicial clemency should be available to a person, regardless of how long it has been since the criminal matter has concluded. Not only is this more consistent with the lifelong rehabilitative focus behind judicial clemency as stated before, many ex-offenders may not realize their need for judicial clemency until years after they completed their sentence (because, as stated before, judicial clemency does not make any difference to the direct sentence/punishment given to the offender). Furthermore, H&A feels that offenders’ requests for judicial clemency are civil—rather than criminal—in nature, similar to requests for expunctions, nondisclosures and other civil actions that are available in Texas and could be brought long after the conclusion of the underlying criminal case. Thus, such requests should not be limited by the trial court’s “plenary power” over the criminal matter.


As of this writing, H&A is involved in several appeals that are pending in Texas, dealing with this unsettled issue. Depending on how those appeals are resolved, our position on judicial clemency may prevail in the courts and become the law in the state sometime in the near or distant future—which, in turn, would change the lives of many ex-offenders across the state.