DAN MORALES

ATTORNEY GENERAL 

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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, thejudge, 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 thejudge discharges the defendant under this section, thejudge 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 theThe 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 statejail 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 ofthat article, you ask whether such a person is eligible for a pardon’ a&r thejudge who discharged the person pursuant to section 20 also granted the relief that is emphasiaed above. We believe such aperson 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. 42.12 920(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, sodwelimitthisepinionaccordtngly.

‘Section5pvidcs fordefertwt adjudication

community

supervision.

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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 ofAttorney General Opinion DM-349 applies here as well.

In your ‘requestletter 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 ofthat 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 ofthe 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 ofthe court’s disposition ofthe case in question. The accuracy ofthe language of the certification is questionable; we have found no precedent for a proceeding that

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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 ofthat case. Ifthere is such an order, then the pardon applicant should be required to submit a copy of that order for review ifthe Board of Pardons and Paroles or the governor CBnnotdetermine, 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 ifby 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 mmcpro fttnc correcting the disposition entry. See, e.g., Johnston v. Siate, 323 S.W.2d 449,451 (Tex. Grim. App. 1959); Exparte 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 mmcpro tune correcting the written entry of the wurt’s disposition of a case ifby clerical error the entry does not wrrectly reflect the actual disposition rendered by the court.

DAN MORALES Attorney General of Texas

“Ina searchof a computerdatabase of Tews case law WC found several repotted cases in which theanui setastdeanorderrevoking probation.See,e.g.,Carrv.State,143S.W.zd 51 (lb. App.- Houston [lst Llii.] 1987, nowit); AtchisonY.State,716 S.W.2d 185 flex. App.-Fort Worth 1986, no tit). In other casea the cam set aside for voidness an ordergrcmting pbcltion. See.ex., StateY. Cuny, 599 S.W.M 630 (l’ex. Grim. App. 1980); Walkerv. State, 562 S.W.Zd 864 flex. Grim. App. panel Op.]1978). In stillother cazs ~he court dismissed amotiontorevoke

probation.See,e.g..Fried1 Y.St&, 773 S.W.Zd72 flex. ALP.-Houston [la D&t.] 1989, no writ); Stow11Y.St&-, 683 S.W.Zd891
~cx. ALP.-Fort Wozth 1985, writ rrfd). We found no case, however, whcrethccomthoulactssideaod diamiaacdan orderofprobation.

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JORGE VEGA Fii Assistant Attorney General

SARAH J. SHIRLEY Chair, Opinion Committee
Prepared by James B. Pinson Assistant Attorney General

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