Set Asides (Judicial Clemency)2020-05-21T13:58:42-06:00

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Set Asides (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, he can ask the Court that the conviction be 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.

New law effective September 1, 2019. The 2019 legislature made a very important and beneficial change to the law regarding Set Asides.  Prior to this law, if a person requested and received a set aside, the record was flagged to show this, but it remained visible on the record for anyone to see. The new law allows the record for the offense that had the conviction set aside to be sealed (via a non-disclosure order) which would prevent the general public from seeing the record; law enforcement could still see it. Once sealed, if a background check is done, it would not show up, except to law enforcement. Also, the defendant can legally deny everything about the offense, including that he was arrested and put on probation. There is a waiting period: 2 years for misdemeanors and 5 years for felonies. The waiting period begins once the set aside is obtained.

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.
  • A new law effective September 1, 2019 allows the individual that has a set aside granted to request the record be sealed. There is a waiting period as described above: 2 years for a misdemeanor and 5 years for a felony. The waiting period begins after the set aside is obtained.  Once the record is sealed, the individual can legally deny everything about the case.

This law could make a drastic difference in someone’s life. For example, let’s say someone is charged with a felony theft and given 10 years straight probation. He does well and, after 2 years, he gets an attorney to request early release and a set aside. Assuming this is granted, 5 years later, he can get the record sealed by getting an attorney and requesting a non-disclosure order which seals the record.  Now, not only has he got off probation early and his rights have been restored, his record has been sealed. He can now legally deny everything about the case. So, where before the would have been on probation for 10 years and have to carry the stigma of a felony conviction, he now has got early release from probation, had the conviction set aside, and gotten the record sealed all within 7 years. Note this is an example and no guarantee of results for anyone.

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.

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 are some important time constraints which you must be aware of. You must apply for a Set Aside (IE Judicial Clemency) before you get off probation or within 30 days of finishing your probation. There has been recent case law that indicates that a court loses jurisdiction for a case 30 days after the probation is concluded. However, bear in mind there may some courts that may still grant the Set Aside even after 30 days so it would be worthwhile to look into that possibility even if you have been off of probation for a year or so. Note also that if you were placed on probation after March31, 2010 and not informed of this right and your probation has been concluded more than 30 days ago, please call us. We still may be able to help you.

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 information provided the better. Following are some of the factors the Judge may consider. 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 2 to 4 months.

As mentioned above, if you wish to seal the record after a set aside is granted, there is a waiting period: 2 years for misdemeanors and 5 years for felonies; the waiting period begins after the set aside is obtained.

Attorney fee:

The fee to handle this for you is $2400. We do have payment plans. The payment plan requires a third down ($800) and remaining $1600 over the next 2 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.

If you wish us to seal the record after the waiting period elapses, our fee for that is $2100. We have payment plans where you pay $700 down and we give 2 months to pay remainder.

What Counties of Texas do you handle Set Asides:

This office handles Early Release, Set Asides (Judicial Clemency) and Sealing Records all over the state of Texas.

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) 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.

Call us, text us, or contact us via our online form NOW to get started!