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Texas Code of Criminal Procedure Article 42A.701

Texas Code of Criminal Procedure Article 42A.701 Regarding Judicial Clemency

Summary

Texas Code of Criminal Procedure Article 42A.701 Allows for Limited Judicial Clemency via the Set Aside Process

Judicial Clemency is made possible by Texas Code of Criminal Procedure Article 42A.701 by allowing a judge to set aside a conviction within 30 days of termination of probation or community supervision on the conviction. This means that the person is no longer considered convicted of a crime (although it does not in any way seal the case or hide the case from prosecutors and judges). When the case is set aside it becomes a dismissed case for most purposes meaning that the person who received the set aside is now less prejudiced when seeking employment and moving forward from the poor decisions in their past.

Because a set aside is a form of judicial clemency, it is truly meant to reward rehabilitation and to give a person a second chance that they deserve. A judge uses his or her discretion when determining whether granting a set aside is warranted or not. In several counties, court case law allows for judges to grant set asides at any point after a sentence is completed. In most of Texas, however, a set aside is only available for 30 days before the court loses jurisdiction to grant a set aside.

Texas Code of Criminal Procedure Article 42A.701 also allows for a sentence to be terminated early by a judge. This is another form of judicial clemency.

Full Code

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.
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