What Is “Judicial Clemency”?
In some criminal cases where a defendant is convicted but the sentence was limited to community supervision–i.e., probation without any jail time–it is possible to seek a form of relief known as judicial clemency. This basically refers to the trial judge’s authority to set aside a conviction after a defendant successfully completes their probation. It is important to note this is not the same thing as clemency granted by the governor, which is an entirely different process.
Judicial clemency does not erase or seal your criminal record. Rather, it simply changes the disposition of your case from a conviction to a dismissal. Not all crimes are eligible for judicial clemency. For instance, you cannot seek judicial clemency to dismiss a drunk driving or sex crimes conviction. And your sentence must be limited to community supervision–judicial clemency is not available if you served any time in prison for your crime.
Court of Criminal Appeals Affirms 30-Day Time Limit to Seek Judicial Set Aside of Conviction
There is also a time limit to seek judicial clemency. The Texas Court of Criminal Appeals recently explained this time limit in a published decision, State v. Brent, involving a woman previously convicted of misdemeanor theft. Following a jury trial, the judge decided to suspend the defendant’s six-month jail sentence and place her on community supervision for one year.
The defendant apparently completed probation without incident, and the judge formally terminated community supervision in March 2017. More than two years later, in November 2017, the defendant asked for judicial clemency to set aside the theft conviction. The district attorney objected.
Eventually, the matter made its way to the Court of Criminal Appeals, which agreed with the state’s position that the trial court no longer had the jurisdiction to consider or grant the defendant’s petition for judicial clemency. The Court explained that under the “plain terms” of Texas law, a “trial court’s power to grant judicial clemency is limited to its 30-day plenary power.” That is to say, the trial court can only grant clemency within 30 days of the end of a defendant’s probation.
The Court of Criminal Appeals noted this was the view taken by several intermediate Texas appellate courts prior to 2018, when the legislature “repealed, reorganized, and amended” the state’s probation laws without countermanding this 30-day rule. The Court of Criminal Appeals thus saw no reason to change the rule now. In its view, a trial judge does not have “never-ending jurisdiction to grant judicial clemency.” The defendant’s conviction in this case therefore stood as she sought clemency well outside the 30-day window.
Contact Pearland Criminal Defense Lawyer Keith B. French Today
Many people are unaware they might have the option of setting aside a misdemeanor conviction through judicial clemency. That is why it is important to work with an experienced Pearland misdemeanor defense attorney who can advise you of your rights and represent your interests in court. Contact the offices of Keith B. French Law, PLLC, to schedule a consultation with a criminal defense attorney today.