Texas Judicial Clemency: Setting Aside Criminal Convictions

Under the Texas Judicial Clemency law, judges can set aside a criminal conviction. Judicial clemency is separate from the governor’s clemency power and is only available after “straight” probation.

Certain offenses are ineligible for Judicial Clemency, including DWI offenses, offenses requiring sex offender registration, and the 42A.054 offenses (formerly known as “3g felonies”). If you successfully have your conviction set aside through Judicial Clemency, your conviction will be set aside and the case dismissed. The law says that you are then released from all penalties and disabilities resulting from the offense or crime (with certain exceptions).

Judicial Clemency is a form of post-conviction relief that does not remove anything from your criminal record, but instead changes the disposition of the case to dismissed and grants you some specific civil rights. It is important to note that you are not eligible for judicial clemency if you served a jail or prison sentence. If you are able to set your conviction aside through this process, it may be easier for you to pass background checks, find a job and you will be able to say that you do not have a conviction on your record.

Judicial Clemency is not automatic. Even if you are eligible, you must still convince a judge that you are deserving of it. You will not receive Judicial Clemency if you have violated your probation conditions. You will not be eligible for an expunction or an order of non-disclosure just because you have had your conviction set aside. You should hire a Judicial Clemency attorney to help you through this process. It is your permanent record, so it is always worth hiring expert legal help.

The Texas laws regarding Judicial Clemency were recently restyled. I have updated the legal citations throughout this article, but I will leave the old citations in paranthesis next to the new citations until the new laws settle in because many judges and lawyers are not aware of the new restylings.

Are you eligible for Texas Judicial Clemency?

You are eligible for Judicial Clemency in Texas if you have been convicted and received probation (or community supervision), unless any of the following applies:

• 1) The conviction that you are trying to set aside is a DWI-related conviction under Sections 49.04-49.08 of the Texas Penal Code.^[1]
• 2) The conviction that you are trying to set aside required you to register as a sex offender.^[2]
• 3) The conviction that you are trying to set aside is a 3g felony.^[3]

  

Remember, just because you are eligible does not necessarily mean that you will receive Judicial Clemency. You should hire a Judicial Clemency attorney who can make sure you have the best chance of success. In addition, you have to have completed the portion of your community supervision specified below before you can apply. Additionally, if more than 30 days has passed, some counties follow a rule that says you are ineligible (although we believe this rule is not correct).

Will Judicial Clemency erase a conviction from my record?

Judicial Clemency does not exactly “erase” a conviction from your record. Instead, it essentially changes your record from a conviction to a dismissal. This does not seal your record and it is not the same thing as an expunction. Instead, your record will indicate that you do not have a conviction for the offense that was set aside.

Who can see my record after I have received Judicial Clemency in Texas?

Your record will be visible to anyone who searches for it, but an employer or anyone else who searches for convictions only will not see the offense because, after receiving judicial clemency, the final disposition is not a conviction. If, however, someone is searching for dismissed cases, then the case will appear as a dismissed charge.

Even though your record is not sealed, having your record set aside can help you obtain employment and other rights and privileges because you are released from most penalties, disabilities, and restrictions resulting from that conviction.

Can I get an expunction after I have received Judicial Clemency?

You are not eligible to expunge an arrest if you have have been convicted. Receiving Judicial Clemency does not change this. Learn more about expunctions, expungement and record sealing

Can I get an order of nondisclosure after I received a Judicial Clemency?

You can obtain an order of nondisclosure only if you received deferred adjudication probation, unless the offense occurred on or after September 1, 2015, in which case special rules apply. If you received “straight probation” for an offense that occurred before September 1, 2015, then you are not eligible for an order of nondisclosure even if you received Judicial Clemency. However, if you are eligible for an order of nondisclosure, then you should obtain that form of relief. Learn more about Orders of Nondisclosure

Can I get a conviction removed from my record?

You can get a conviction removed from your record through Judicial Clemency only if the offense was an eligible offense, you have completed enough time on probation to qualify for early termination, and you have completed your requirements of probation. Finally, it is up to the judge’s discretion whether to approve your petition for Judicial Clemency.

You are not eligible to remove a conviction from your record through expunctions or orders of nondisclosure if the offense date was prior to September 1, 2015. This is a frequent area of confusion. You are eligible to expunge your record only if you were never convicted or received a pardon after a conviction (see a few other exceptions here). You are eligible for an order of nondisclosure only if you successfully completed a term of deferred adjudication and the case was dismissed (however, if the offense occurred after September 1, 2015, a new law provides some additional relief). Learn more about eligibility for Orders of Nondisclosure

What is the process to receive Judicial Clemency?

Generally speaking, all that our clients have to do after they hire us is to come to court one time with us. Sometimes your presence can be waived as well, so after you hire us you may not have to do anything else. We will send you a form to fill out and you will have to give that back to us via email, fax, mail or in person.

As your attorney, we have to draft a “petition,” which is a legal document that we submit to the court. The court will then notify the state’s attorneys and set a date for a hearing in which the state’s attorneys has an opportunity to object. We will then go to court for you and argue your case to the judge. If the judge approves the request in our petition, the judge will enter an order dismissing the case. The entire process can take 4 – 7 months depending on the county. If the petition is denied, we may re-file later or appeal.

Do I have to disclose my conviction after I received Judicial Clemency?

You will be able to say that you were not convicted if you receive Judicial Clemency.

Do I need to continue to register as a sex offender if I have received Judicial Clemency?

Unless your offense is of a certain type and was committed before September 2009, your duty to register will remain even if you receive Judicial Clemency.

How long does it take to receive Judicial Clemency?

It can take us 30 days or more to prepare your paperwork. Sometimes we can do it faster, but no matter what, it will take the court some time to set and have a hearing (if necessary). DPS will usually update its records within 30 days after the judge signs the order dismissing the case. However, it has been our experience that local clerks do not always update their records correctly after an order has been signed. Sometimes it will take additional work to get the clerks to change their records to reflect that the case has been dismissed.

Can I get a gun after I have received Judicial Clemency?

Having your conviction set aside will restore your right to obtain a firearm under Texas law. However, the federal prohibition on firearm ownership after a domestic violence conviction will still apply, but only if the offense was a domestic violence offense. In addition, a conviction set aside after receiving Judicial Clemency still counts as a conviction for purposes of obtaining a CHL (Concealed Handgun License).

How will Judicial Clemency affect my ability to get a job as a schoolteacher, nurse or bank employee?

If you are granted Judicial Clemency, most state agencies will be prohibited from considering the offense in deciding whether to grant you a particular license. This includes nursing and teaching jobs, but this does not include 1) licensing related to the Health and Human Services Commission for jobs involving child care services, 2) law enforcement officer, security officer, or county jailer jobs.

Section 19 of the Federal Deposit Insurance Act allows banks to bar individuals who have had “Breach of Trust” or “Dishonesty” convictions, even if the conviction was ultimately set aside. However, you can apply for a waiver from the FDIC.

Frequently Asked Questions About Judicial Clemency in Texas

Are certain offenses excluded from Judicial Clemency in Texas?

According to subsection (g) of Texas Code of Criminal Procedure, judicial clemency will not apply to DWI-related convictions, registrable convictions and felonies described by Article 42A.054. This analysis is a little more complicated than it seems at first glance, however. Every case is different. Your eligibility is something that you should have us review for you.

What are some of the benefits of being granted Judicial Clemency?

Judicial Clemency often restores rights that have otherwise been lost, including some gun rights, rights to vote, and other rights that have been lost due to being convicted of a felony. Many people also feel a significant personal benefit from having their record reflect a dismissal instead of a conviction. Sometimes this can also improve the likelihood that you pass a background check for employment purposes.

What should I do if I think I qualify for Judicial Clemency in Texas?

If you think you qualify for judicial clemency, try to gather some paperwork and then schedule a consultation with us. Ideally you should collect (1) the plea agreement that you signed (if any), (2) the judgment that sentenced you to probation and (3) the order that terminated your probation (if any).

What are some factors that the court would consider?

Courts consider what kind of life you have lived since the conviction, whether you have successfully completed all of your probation conditions and whether society would be better off if you were released from all of the penalties and disabilities resulting from the conviction.

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Legal References:

^1. Texas Code of Criminal Procedure Section 42A.701(g)(1) (formerly found in CCP 42.12 Section 20 (b))^2. Texas Code of Criminal Procedure Section 42A.701(g)(2) (formerly found in CCP 42.12 Section 20 (b))^3. Texas Code of Criminal Procedure Section 42A.701(g)(3) (formerly found in CCP 42.12 Section 20 (b))