Set Asides (Judicial Clemency)

Set Aside Convictions (Judicial Clemency)

Early Release and Setting Aside Probation Convictions in Texas (also the latter termed “Judicial Clemency”)

Introduction:

An individual that has been placed on probation may be able to get released early from that probation. At the same time, or sometime in the future, he can ask the Court that the conviction be set aside; see section below "when you may or may not request a set aside. If set aside, the conviction status on the record is removed for this offense and the defendant's rights, including his gun rights, are restored. It is called Judicial Clemency (also termed “Set Aside”) because it is solely up to the Judge whether to grant a request for a Set Aside. The right to request a Set Aside (Judicial Clemency) is a very valuable right that many defendants that are put on probation are not aware of. This document explains the benefits, information about the process, and who may be qualified to ask for Judicial Clemency and early release.

Benefits of Judicial Clemency:

The following are the benefits from a successful effort for Judicial Clemency (ie. Set Aside)

The status of the disposition of the case is shown that there is no conviction and that the case has been dismissed. For example, in Dallas County, Texas, if Judicial Clemency has been granted, the computer system will show a status of JGSA. That means the Judgment of Guilt has been Set Aside. This information is, of course, also in the court's file for this case.
Your right to own a firearm is restored. This is a very important benefit to a person that is an avid hunter or just feels safer and more comfortable having a firearm in their possession. It is to be noted that a convicted felon faces a Third degree felony if caught with a firearm in their possession. If the conviction that made them a felon is set aside, he does not have to worry about this.
When you are filling out applications, for example a job or an apartment, you can legally and truthfully say that you were not convicted.
Background checks will not reflect a conviction although the offense will continue to show on the record until, if and when, the record is sealed.
As the law states, once the conviction is set aside, you are “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”.
As important as any of the above it is your feeling of knowing that the crime of which you were convicted is no longer a conviction and has been set aside. It, in some ways, erases an old mistake.
Although you cannot at present get the record sealed for the offense that has been set aside, I expect the law will change where this will be possible. In the 2019 Texas Legislature, a bill was passed that would allow sealing, but the Governor vetoed it. I would expect this to be presented again in the next few years.

Felony and Misdemeanor Cases are Eligible:

Judicial clemency/set aside is available for most misdemeanors as well as most felonies. See next paragraph for offenses that cannot be set aside. For misdemeanors, this would include Domestic Violence offenses.

Types of Cases that are not eligible:

There are certain types of cases where the Court (Judge) is not permitted to set aside the conviction. This includes most intoxicated related offenses, such as DWI's, Intoxication Manslaughter, and so forth. The Court is also not permitted to Set Aside a conviction where a defendant required to register as a sex offender or where the defendant was convicted of extremely serious offenses, termed “aggravated offenses”.

When you may and may not request a Set Aside:

If you are interested in applying for a Set Aside of your conviction, there may be some important time constraints which you must be aware of, and these constraints vary from jurisdiction to jurisdiction. In some jurisdictions, you must apply for a Set Aside (IE Judicial Clemency) before you get off probation or within 30 days after finishing your probation. In some other jurisdictions, the time constraint is not there. Also, in some other jurisdictions, the time constraint question has not been addressed.

If in doubt as to whether or not you may qualify, call us! We would be happy to discuss it and look into it for you. It is hard to over emphasize how important this can be to you. Look at the benefits above again and you will see that being successful in getting a set aside can make a big difference in several ways.

Early Release concurrent with Judicial Clemency:

As mentioned earlier, It is also possible to be released from probation early. If you do, this would be a good time to ask for Judicial Clemency. This means you may be able to be released from probation early and be granted Judicial Clemency at the same time. On straight probation, once you complete one third or two years, whichever is less, you would be eligible to ask for early release.

What Some of the Factors are the Court may Consider:

As stated above, the Court (Judge) has the discretion to Set Aside the conviction or not to Set Aside. It is a very significant decision for the Court to make so the more pertinent information provided the better. Following are some of the factors the Judge may consider. What he is trying to determine is: have you be rehabilitated. These are mostly common sense items and most are listed below.

What else is on your record, if anything.
Your level of remorse for the offense that was committed.
What have you learned from this mistake.
How will the set aside benefit you.
How will this benefit your family.
How have you improved yourself while you were on probation.
Have you progressed with your education.
Have you done positive things for the community.
Have you held down a job.
Basically, have you become a good and productive citizen.

Amount of Time the Process takes:

The amount of time it will take to complete a Set Aside varies greatly from court to court and county to county. It would be prudent to figure on from 4 months.

Attorney fee:

The fee to handle the effort for a set aside if $6000. We do have payment plans. The payment plan requires a third down ($) and remaining $4000 over the next 4 months. Once we have the down payment we start on your case. We do not wait until we have all of the fee before we start. This fee includes extensive discussions with the client, background checks, legal research, preparation of legal paperwork asking the court for the Set Aside, conducting a hearing if necessary, and follow up. There is no filing fee and no other costs involved regarding our service to handle this effort for you. If you want us to also try to get an early release in conjunction with a set aside, add $1000 to the above fee. (Note: to do an early release without a Set Aside is $3000).

What Counties of Texas do you handle Set Asides:

This office handles Early Release and Set Asides (Judicial Clemency) in the DFW and surrounding counties.

Excerpt of relevant law:

For your information the following is an excerpt from the pertinent statute (Code of criminal procedures, Article 42A.701 (formerly Article 42.12, section 20):

Art. 42A.701. REDUCTION OR TERMINATION OF COMMUNITY SUPERVISION PERIOD.

(a) 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 judge may reduce or terminate the period of community supervision.

(b) On completion of one-half of the original community supervision period or two years of community supervision, whichever is more, the judge shall review the defendant's record and consider whether to reduce or terminate the period of community supervision, unless the defendant:

(1) is delinquent in paying required costs, fines, fees, or restitution that the defendant has the ability to pay; or

(2) has not completed court-ordered counseling or treatment.

(c) Before reducing or terminating a period of community supervision or conducting a review under this article, the judge shall notify the attorney representing the state and the defendant or, if the defendant has an attorney, the defendant's attorney.

(d) If the judge determines that the defendant has failed to satisfactorily fulfill the conditions of community supervision, the judge shall advise the defendant in writing of the requirements for satisfactorily fulfilling those conditions.

(e) On the satisfactory fulfillment of the conditions of community supervision and the expiration of the period of community supervision, the judge by order shall:

(1) amend or modify the original sentence imposed, if necessary, to conform to the community supervision period; and

(2) discharge the defendant.

(f) If the judge discharges the defendant under this article, the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea. A judge acting under this subsection shall dismiss the accusation, complaint, information, or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense 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 if the defendant is convicted of any subsequent offense; and

(2) if the defendant is an applicant for or the holder of a license under Chapter 42, Human Resources Code, the Department of Family and Protective Services may consider the fact that the defendant previously has received community supervision under this chapter in issuing, renewing, denying, or revoking a license under Chapter 42, Human Resources Code.

(g) This article does not apply to a defendant convicted of:

(1) an offense under Sections 49.04-49.08, Penal Code;

(2) an offense the conviction of which requires registration as a sex offender under Chapter 62; or

(3) a felony described by Article 42A.054.

If you wish to read the full statute/law you can link to:

http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.42a.htm#42a.701

and find section 701.

Call us now for a free phone consultation:

Call for a free phone consultation for further information on this very important right that you have. We will discuss your eligibility, our payment plans (which are very flexible) and other aspects of possibly getting your conviction cleared and your rights restored. As mentioned earlier, this office handles Set Asides (Judicial Clemency), expungements, and sealing records all over the State of Texas. Our number is 972-722-0887. You also can text us at 972-814-7318. We return calls 24X7.