Set Asides (Judicial Clemency)
An individual that has received probation may be able to have his/her conviction Set Aside. The laws of the State of Texas permit a Judge, at his discretion, to set aside the verdict or he can permit the defendant to withdraw his guilty plea. The Judge can then dismiss the accusation, complaint, information, or indictment against the defendant. The consequence of this action is that the conviction is removed and the defendant’s rights, including gun rights, are restored. It is called Judicial Clemency (also called a Set Aside) because it is solely up to the Judge whether or not 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.
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 is set aside, he does not have to worry about this. It is also important to point out that a person convicted of an Assault Family violence charge could also face serious charge if found in possession of a firearm within 5 years of completing probation. Again the Set Aside will prevent this from occurring.
- 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.
- 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.
Felony and Misdemeanor Cases Eligible:
Judicial clemency is available for most misdemeanors as well as most felonies. For example, if you were convicted and placed on probation for assault family violence, a misdemeanor unless choking was alleged, you would probably be eligible to ask for a 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 of 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 March 31, 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:
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. There is no time constraint for early release for Deferred Adjudication probation.
What Some of the Factors 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.
- How will this 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 3 to 6 months.
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.
What Counties of Texas do you handle Set Asides:
This office handles Set Asides (Judicial Clemency) all over the state of Texas. Note that we also handle sealing and expunctions of records in every county of Texas.
Excerpt of relevant law:
For your information the following is an excerpt from the pertinent statute (Code of criminal procedures, Article 42.12, section 20):
“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, except that:
(1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and
(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying, or revoking a license under that chapter.
(b) This section does not apply to a defendant convicted of an offense under Sections 49.04-49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, or a defendant convicted of a felony described by Section 3g.”
If you wish to read the full statute/law you can link to:
Call us now for a free phone consultation:
Call us at 1-800-630-5985 or text us at 972-814-7318 to setup 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) all over the State of Texas. We return calls and texts 24×7.