DAN MORALES 

ATTORNEY GENERAL 

QBffice of tfie !ZUtornep @enera 

&ate of Eexae 

The Honorable George W. Bush 

Governor of Texas 

P.O. Box 12428 

Austin, Texas 78711, 

May 14, 1996 

Opinion No. DM-393 

Re: Whether a pardonable conviction 

exists after the completion of “regular” or 

“shock” community supervision under 

Code of Criminal Procedure article 42.12, 

section 20 (RQ-860) 

Dear Governor Bush: 

You ask us two questions about section 20 of article 42.12 of the Code of 

Criminal Procedure. Subsection (a) of section 20 grants the judge “the discretionary 

power to set aside [the defendant’s] conviction and restore his civil rights.” Shepherd Y. 

Trcviino, 575 F.2d 1110, 1115 (5th Cii. 1978) (reviewing constitutionality of predecessor 

of subsection (a)), cert. denied, 439 U.S. 1129 (1979). Subsection (a) provides: 

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 period of 

community supervision may be reduced or terminated by the judge. 

Upon the satisfactory fbKllment of the conditions of community 

supervision, and the expiration of the period of community 

supervision, the judge, by order duly entered, shall amend or modify 

the original sentence imposed, if necessary, to conform to the 

community supervision period and shall discharge the defendant. If 

the judge discharges the defendant under this section, the judge may 

set aside the verdict or permit the &femAmt to withakw his plea, 

and shall aYsmis.9 the accusation, complaint. information or 

indictment against the akfenaknt, who shall theretiter be released 

from all per&ties and akabilities resulting from the offense or 

crime of which he has been convicted or to which ‘he has pleaakd 

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 Texas 

Department of Human Setvices may consider the fact that the 
The Honorable George W. Bush - Page 2 (DM-393) 

defendant previously has received community supervision under 

this article in issuing, renewing, denying, or revoking a license 

under that chapter. [Emphasis added.] 

Section 20 “does not apply to a defendant convicted of an offense under Sections 

49.04-49.08 [(driving, flying, or boating while intoxicated; intoxication assault or 

manslaughter; or an enhanced offense)], Penal Code, or a defendant convicted of an 

offense punishable as a state jail felony.” Code Crim. Proc. art. .42.12, § 20(b). 

Liiting your question to a person who has been on “regular” community 

supervision under section 3 or 4 of article 42.12 or on “shock” community supervision 

under section 6 of that article, you ask whether such a person is eligible for a pardon’ a&r 

the judge who discharged the person pursuant to section 20 also granted the relief that is 

emphasiaed above. We believe such a person is not eligible for a pardon. 

Once the judge has set aside the verdict or permitted the defendant to withdraw 

her guilty plea and has dismissed the charging instrument, subsection (a) of section 20 

operates to release the defendant from “all penalties and disabilities resulting from the 

offeme or crime of which he has been convicted or to which he has pleaded guilty.” Code 

Crim. Proc. art. 42.12 9 20(a). Subsection (a) provides, however, that the defendant’s 

conviction or guilty plea shall be considered in assessing the penal consequences of a 

subsequent offense and in determining whether the defendant should be issued a license to 

operate a child-care or child-placing agency or whether such a license should be renewed 

or revoked, see Hum. Res. Code ch. 42. 

These provisions in subsection (a) are similar to those in section 5(c)z of article 

42.12, which we described in Attorney General Opinion DM-349 as follows: 

Subsection (c) provide[s in part] that, generally, “[a] 

dismissal and discharge under this section may not be deemed a 

conviction for the purposes of disqualifications or disabilities 

imposed by law for conviction of an offense,” but that the 

defendant’s prior receipt of deferred adjudication community 

supervision may be considered in the punishment phase of a 

prosecution for a subsequent offense or in the process of determining 

whether to issue, renew, deny, or revoke either of the following: a 

license to operate a child-care facility or child-placing agency or a 

‘Weassumcyouinquino~abouta~nthatisnotbaccdonafindingofactualinnocencc, 

sod we limit this epinion accordtngly. 

‘Section 5 pvidcs for defertwt adjudication community supervision. 

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The Honorable George W. Bush - Page 3 (DM-393) 

license or registration to provide rehabilitative mental health or 

medical services to sex offenders. 

Attorney General Opiion DM-349 (1995) at 3 (quoting Code Grim. Proc. art. 42.12, 

$5(c)(l)) (citations omitted). We reasoned that the provisions in section 5(c) relating to 

subsequent prosecutions and licensing matters do not “constitute continuing penalties or 

disabiities” but rather “are merely liited grants of authority to consider the fact of the 

defendant’s prior guilt when that guilt is relevant to the defendant’s character.” Id. at 6. 

Then we also noted that a governor’s pardon, when not based on the governor’s tindmg 

that the defendant is actually innocent of the offense, “may reach only the punishments, 

penalties, disabiities, and disqualiications that the law would attach to the pardoned 

conviction” and that such a pardon “neither atEcts the penal consequences of any 

subsequent offenses nor restores a person’s reputation or good character.” Id. at 5. We 

concluded: 

[T]o the extent that the law permits the fact of a prior conviction to 

be considered (1) in assessing the penal consequences of a 

subsequent offense or (2) in determining whether the person 

possesses the good character required for licensing in a position of 

responsibility and trust, the governor has no power to intervene by 

granting such a pardon. 

Id. The reasoning of Attorney General Opinion DM-349 applies here as well. 

In your ‘request letter you describe a situation involving an applicant for a pardon 

who had been convicted of delivery of a controlled substance and who was discharged 

from “shock” probation in 1984. The applicant submitted a copy of a document captioned 

“Certification of Proceedings,” which bears the signatures of the presiding judge of 

Criminal District Court No. 4 of Tarrant County and a deputy district clerk of that wunty 

and which contains atter the word “‘Proceedings” the following notation: “Probation Set 

Aside and Dismissed on 3-15-84.” You note the ambiguity of the notation: “Set Aside” 

and “Dismissed” appear to modify “Probation,” but the writer could have intended the 

notation as an elliptical way of indicating that the verdict was “Set Aside” and the 

charging iwtrument was “Dismissed,” that is, that the court granted the relief authorized 

in section 20(a). The document contains no 8nther information, and we understand that 

your office has no other information, concerning the final disposition of that prosecution. 

You apparently assume that the document is a copy of the very entry of the court’s order 

that tinally disposed of the prosecution. Based on that assumption, you ask: “[IIf the 

Governor or the Board [of Pardons and Paroles] determines that the order is so 

ambiguous that the Court’s intention cannot be determined, has the court lost its 

jurisdiction to clarify its intention by some modified order?’ 

We suspect the above-described “Certification of Proceedings” is not in fact the 

very entry of the court’s disposition of the case in question. The accuracy of the language 

of the certification is questionable; we have found no precedent for a proceeding that 

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The Honorable George W. Bush - Page 4 (DM-393) 

results in both “setting aside” and “dismissing” an order of probation.3 It may be that the 

presiding judge actually signed a separate order that more clearly indicates the specific 

tinal disposition of that case. If there is such an order, then the pardon applicant should be 

required to submit a copy of that order for review if the Board of Pardons and Paroles or 

the governor CBnnot determine, based on the present record, whether the judge ordered 

the relief necessary under section 20(a) to release the defendant from all penalties and 

disabilities. 

If the above-desctibed “Certification of Proceedings” is in fact the written entry of 

the court’s disposition of the case in question and if by clerical error it does not wrrectly 

reflect the actual disposition rendered by the wurt, then we believe the wurt would have 

the inherent power to enter an order mmc pro fttnc correcting the disposition entry. See, 

e.g., Johnston v. Siate, 323 S.W.2d 449,451 (Tex. Grim. App. 1959); Ex parte Honnen, 

228 S.W.2d 864,866 (Tex. Grim. App. 1950). 

SUMMARY 

A person who has been on “regular” or “shock” wmmunity 

supervision is not eligible for a governor’s pardon a&r a judge 

discharges the person pursuant to section 20 of Code of Criminal 

Procedure article 42.12 and, in so doing, also restores the person’s 

civil rights by setting aside the conviction and dismissing the charging 

instrument. 

A wurt has the inherent power to enter an order mmc pro tune 

correcting the written entry of the wurt’s disposition of a case if by 

clerical error the entry does not wrrectly reflect the actual 

disposition rendered by the court. 

DAN MORALES 

Attorney General of Texas 

“In a search of a computer data base of Tews case law WC found several repotted cases in which 

the anui set astde an order revoking probation. See, e.g., Carr v. State, 143 S.W.zd 51 (lb. App.- 

Houston [lst Llii.] 1987, no wit); Atchison Y. State, 716 S.W.2d 185 flex. App.-Fort Worth 1986, no 

tit). In other casea the cam set aside for voidness an order grcmting pbcltion. See. ex., State Y. 

Cuny, 599 S.W.M 630 (l’ex. Grim. App. 1980); Walker v. State, 562 S.W.Zd 864 flex. Grim. App. 

panel Op.] 1978). In still other cazs ~he court dismissed a motion to revoke probation. See, e.g.. Fried1 

Y. St&, 773 S.W.Zd 72 flex. ALP.-Houston [la D&t.] 1989, no writ); Stow11 Y. St&-, 683 S.W.Zd 891 

~cx. ALP.-Fort Wozth 1985, writ rrfd). We found no case, however, whcrethccomthoulactssideaod 

diamiaacd an order of probation. 

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The Honorable George W. Bush - Page 5 (DM-393) 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by James B. Pinson 

Assistant Attorney General 

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