How Texas Felony Set Asides Affect Firearm Possession Rights


Cuellar v. State
Court of Criminal Appeals of Texas
February 13, 2002

Holding: A felony conviction set aside pursuant to the judicial clemency provision of Article 42.12, section 20, of the Texas Code of Criminal Procedure is not a felony conviction for purposes of the offense of unlawful possession of a firearm by a felon.

Why This Case is Important: Article 42.12, Section 20, of the Texas Code of Criminal Procedure establishes the discharge of petitioners from community supervision. This case establishes that there are two ways a judge can discharge a defendant pursuant to Section 20.

The normal method of discharge occurs when a defendant has completed the terms of his community supervision; this method is the non-discretionary method of termination. When a defendant successfully completes the entire term of his community supervision, then the trial judge must discharge the defendant from community supervision (i.e. it is mandatory for the courts to discharge such a defendant). However, when a defendant is discharged in this scenario, the record will correctly reflect he has been convicted of a felony.

Section 20 has an alternative method of discharge that is entirely discretionary. The courts term this method of discharge as “judicial clemency.” A judge exercising judicial clemency will discharge a defendant from community supervision because he believes that the defendant is completely rehabilitated and is ready to be a law-abiding member of society. Such a decision is completely in the judge’s discretion. Furthermore, in exercising judicial clemency, a trial judge may set aside the verdict or permit the defendant to withdraw his plea; the trial judge 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 of the crime. Tex. Code. Crim. Proc. Ann. Art 42.12, § 20(a). In this scenario, the conviction is wiped away, and the defendant is released from all penalties and disabilities. In other words, the felony conviction disappears.

As such, defendants who receive judicial clemency are not convicted felons. This is especially relevant when a defendant faces a charge such as the defendant in this case for the unlawful possession of a firearm by a felon. The crime of unlawful possession requires proof that the defendant was formerly convicted of a felony. Because an act of judicial clemency removes the conviction, then the former crime cannot be used as a basis for the charge of unlawful possession of a firearm by a felon.

It is important to note that a judicial clemency does not allow a defendant to successfully petition to expunge his records. Although judicial clemency may be granted, courts are strictly bound to the expungement statute, which states those who are placed on community supervision are ineligible for expungement relief. An order of community supervision will therefore disqualify a defendant from expunging his criminal records.

Facts of This Case: In July 1976, the defendant in this case pleaded guilty to the felony offense of possession of heroin. The trial court suspended the imposition of sentence and placed him on five years of community supervision. In 1981, the trial court subsequently discharged the defendant pursuant to Article 42.12, § 20.

In 1996, the defendant was pulled over in a truck while on a hunting trip. The defendant had a gun in the truck, and he was thereby arrested and indicted for the unlawful possession of a firearm by a felon. The defendant was found guilty and was placed on two years of community supervision.

The defendant appealed, and the Court of Criminal Appeals of Texas reversed the trial court’s decision. The court of appeals stated that Article 42.12, § 20 provided two methods of discharging a defendant from community supervision. The court of appeals held that on one hand, the trial judge could discharge a defendant who completed his community supervision, in which case the defendant has been convicted of a felony, and on the other, the trial judge could exercise judicial clemency and discharge a defendant before the completion of community supervision, in which case the defendant is not convicted of a felony.

The court of appeals determined that the defendant’s 1976 conviction had been set aside pursuant to the judicial clemency method of Section 20. As a result, the court held that there was no basis to uphold a conviction of unlawful possession of a firearm of a felon because, pursuant to the judicial clemency, the defendant did not have a prior felony conviction.

The Court of Criminal Appeals therefore upheld the decision to reverse the judgment of the trial court.

Key Language: There are two entirely different types of “discharge” from felony community supervision under Article 42.12, § 20. First, a person that has fulfilled all of the conditions of community supervision must be discharged; however that person has been convicted of a felony. The second type of discharge is a matter of judicial clemency. That is, when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may set aside the verdict. If a judge chooses to exercise his judicial clemency provision, the conviction is wiped away, and the person is free to walk away from the courtroom released from all penalties and disabilities.

Expert Advise: “It is important to emphasize that although a judicial clemency can remove the sting of a conviction, it does not allow a person to expunge his or her arrest records. Courts must abide by article 55.01, and if a defendant has been ordered to community supervision, then he is ineligible to apply for expungement relief.” Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

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