Texas House Bill 1742 – Setting Aside Criminal Records
An important bill, relating to the restoration of certain rights for former rehabilitated offenders who completed community supervision, was introduced in the 85th legislative session of the Texas House of Representatives. The bill (H.B. 1742), authored by Representative Terry Canales of District 40, proposes to amend Article 42A.701 of the Texas Code of Criminal Procedure (Article 42A.701) regarding “judicial clemency” discharge.
You can read the full bill here.
The Current Law
Texas law currently provides, under Article 42A.701, that anyone who was placed on community supervision and successfully completes the conditions of his/her community supervision is entitled to receive an order formally discharging the person from supervision (and essentially end his/her sentence for the offense).1
Additionally, it provides that at the time of discharge, the judge may also – as a matter of discretion – set aside the judgment, dismiss the original charge, and release the person from further collateral penalties and disabilities resulting from the offense.2
This second discretionary-type discharge, given only to a defendant whom a trial judge deems as having been “completely rehabilitated” at the end of his/her community supervision, is a type of court-granted pardon which the courts of Texas have described as “judicial clemency”.3 As the Texas Court of Criminal Appeals has held, judicial clemency may also restore a convicted felon’s ability to possess a firearm under state law.4
However, a judicial clemency discharge under Article 42A.701 is not absolute. It does not turn a person completely innocent of the offense. The statute expressly provides that the conviction or guilty plea must continue to be made known to a judge if a person is later convicted of a subsequent offense.5
Furthermore, it does not have any effect on the ability of the Texas Department of Family and Protective Services to consider the person’s criminal incident in deciding whether to issue, renew or revoke certain licenses relating to the care and protection of children.6
Judicial clemency may not be granted to anyone who has been convicted of a sex offender that requires registration as a sex offender.7 Moreover, there is nothing in the law that requires the records of the arrest and conviction which has resulted in judicial clemency discharge to be sealed or expunged from the public. Evidently, despite what might seem like a broad form of relief, there are already various limitations against judicial clemency relief that safeguards children and the general public.
Changes Proposed By HB 1742
Representative Canales’ bill (H.B. 1742) makes two minor amendments to Article 42A.701. First, it clarifies that in the event a person receives judicial clemency discharge for “Title 5” offenses (offenses that are committed against a person, such as assault—as opposed to property-based and other offenses), a judicial clemency discharge may only restore the person’s ability to possess a firearm in Texas if the order specifically states it. Because existing law already provides that a judicial clemency discharge restores firearm rights under state law, the first aspect of this bill would not expand on any existing rights for former offenders; instead, it adds an additional layer of protection for the public against those with Title 5 offenses.
Secondly, H.B. 1742 would clarify that the trial court’s ability to grant judicial clemency discharge under Article 42A.701 continues until the court grants the discharge. This second aspect of the bill is intended to address the confusion currently faced by many trial courts across the state regarding whether they have any jurisdiction/authority when asked by a former offender to reopen older criminal cases in order and grant judicial clemency relief.
Nothing about Representative Canales’ proposed bill would affect the statutory limitations against judicial clemency and the protections for children and the public that are discussed above. The bill would mostly clarify what is already-existing law, reduce confusion for the courts regarding an important question pertaining to restoration of rights for rehabilitated offenders, and would add little to no extra cost for taxpayers.
Read The Full Texas House Bill 1742:
A BILL TO BE ENTITLED AN ACT
relating to the rights of certain defendants who successfully complete a term of community supervision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42A.701, Code of Criminal Procedure, is amended by amending Subsection (f) and adding Subsection (f-1) to read as follows:
(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; and
(3) if the defendant receives the discharge and dismissal with respect to an offense under Title 5, Penal Code, the defendant is released from a penalty or disability resulting from the offense and relating to the possession or ownership of a firearm only if the judge specifically provides for that release in the order discharging the defendant.
(f-1) The jurisdiction of the judge to take action under Subsection (f) continues until the defendant is pardoned.
SECTION 2. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies only to a defendant placed on community supervision on or after the effective date of this Act, regardless of whether the offense for which the defendant was placed on community supervision was committed before, on, or after the effective date of this Act.
(b) Article 42A.701(f-1), Code of Criminal Procedure, as added by this Act, applies to any defendant placed on community supervision, regardless of whether the defendant was placed on community supervision before, on, or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2017.
1Tex. Code Crim. Proc., art. 42A.701(a)-(e).
2Tex. Code Crim. Proc., art. 42A.701(f).
3See Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002).
4Id. at 820 (holding that a person who receives “judicial clemency” discharge for a felony offense is no longer considered a “convicted felon” for purposes of Texas’ felon-in-possession statute, unless he/she has other felony convictions for which he/she has not received judicial clemency discharge); see also Ex parte Jimenez, AP-76,575 (Tex. Crim. App. 2012)(reaffirming Cuellar’s holding).
5 Tex. Code Crim. Proc., art. 42A.701(f)(1).
6 Tex. Code Crim. Proc., art. 42A.701(f)(2).
7 Tex. Code Crim. Proc., art. 42A.701(g).