In Texas a person who has been convicted of a specific felony may have their conviction Set Aside and or their guilty plea withdrawn by a Judge as an act of “Judicial Clemency” while their on probation, or shortly following their termination of probation. It’s in the sole discretion of the Judge to set aside the conviction. If successful, the conviction will show it was dismissed on your record. The complaint and or indictment of the defendant on this charge would also be dismissed. A successful Set Aside will greatly enhance employment and housing opportunities which may have been lost as a result of their felony conviction. The Judicial Clemency and or set aside can also enable a person to regain all of their civil liberties including gun rights back than may have been forfeited as a result of the criminal conviction. Another benefit of the Judicial Clemency can enable successful individuals to terminate their probation (i.e. community supervision) early. Once a conviction is set aside, a defendant can clearly state that they weren’t convicted of that specific charge (while the offense may remain on their record).
WHEN CAN I FILE FOR JUDICIAL CLEMENCY?
A person can file for Judicial clemency while they’re on probation. Normally, a person is eligible to file for the set aside when they’ve completed one third of their probation and or 2 years, whichever time is less. In addition, a defendant usually has only 30 days following completion of their probation to file. In some instances you can still file after the 30 days have elapsed.
WHAT FELONIES ARE ELIGIBLE TO BE SET ASIDE?
Most felonies are eligible to be set aside with a few exceptions. The felonies that can’t be set aside are referred to as “3G” crimes which are considered the most serious. These crimes include:
- Capital Murder
- Murder
- Indecency with a child by contact
- Aggravated kidnapping, assault and or robbery
- Sexual assault and aggravated sexual assault
- Injury to a child, elderly and or disabled person
- Any crime used with a deadly weapon which was used before, during and after the offense.
The other felony offenses that can’t be set aside include DWI’s and other intoxicated related offenses as well as being a registered sex offender.
Persons on probation for Misdemeanor family violence offense may also be eligible to set aside their conviction so long as no choking was involved
WHAT DOES THE COURT LOOK FOR WHEN DECIDING TO GRANT SETTING ASIDE A FELONY?
The Court looks at several factors when deciding to grant a set aside and we recommend providing as much of the following information as possible to put you in the most favorable light before the court. They include:
- Why it will benefit you and your family
- What other criminal activity is on your record
- How have you progressed in your life while on probation including education
- Have you been able to successfully maintain a job
- Remorse for the offense that you committed.
- Have you become a productive member of your community & benefited your community.
CAN I TERMINATE MY PROBATION EARLY?
When a person is eligible for Judicial Clemency they are often eligible to terminate their probation early. You’re eligible for early termination when you’ve completed at least one third of your term of probation and or two years, whichever is less. Similar eligibility requirements apply that are used for Judicial Clemency including complying with all the conditions of probation.
FIREARM RIGHTS UUNDER A SET ASIDE FELONY CONVICTION
Under the leading case of Cuellar vs. The State Of Texas, once a person received Judicial Clemency and their felony conviction is set aside, it is not a conviction that will trigger the offense of unlawful possession of a firearm by a felon. The crime of unlawful possession of a firearm by a felon requires proof that the defendant has a prior felony conviction. If the conviction was set aside, the defendant has no prior felony conviction. If the defendant has prior felony convictions that were not set aside, then they are subject to the offense of unlawful possession of a firearm by a felon
WHAT WILL APPEAR ON MY AFTER JUDICIAL CLEMENCY AND A SET A SIDE:
If granted a set aside, your record who show that the conviction was dismissed, but the offense will still appear. Many state occupational boards will take in consideration your conviction set aside when reviewing your occupational license application.
HOW LONG DOES THE PROCESS TAKE?
Every county maybe different, but on average it takes from 4-8 months.
PLEASE CALL LAW OFFICE OF RONALD L. BARON, PLLC FOR A FREE CONSULTATION to discuss your eligibility for Judicial Clemency. If eligible, we’ll be glad to represent you to obtain an Order For Judicial Clemency in a very cost effective manner.