Def. found guilty of assault by jury and the court imposed $1000 fine, 90 days in jail probated for 6 months. Def. has sucessfully completed all terms of probation and filed motion to set aside the verdict and dismiss the information. Is it mandatory that the court set aside the verdict and dismiss the information?

The statute uses the word "may", which generally means the judge has discretion.

But, I have always thought it is a clear constitutional violation of the separation of powers and the right to a jury trial for the legislature to give a judge authority to undo a guilty verdict years after it was imposed.

In addition, given the collateral consequences that come from an assault conviction (enhanced repeat offense if family violence, prohibition on possession of firearm, etc.), no judge should be doing anything but agreeing to terminate the period of supervision.

The order the defendant seeks is available only if the judge "believes" that the person "is completely rehabilitated and is ready to re-take his place as a law-abiding memeber of society." It is "not a right but rather is a matter of 'judicial clemency' within the trial court's sole discretion". Cuellar. 70 S.W.3d at 818-9.

Right, and I thought only the executive branch, through the Governor and the Board of Pardons and Paroles, could exercise clemency. We should argue that this law is unconstitutional.

Meshell said it was unconstitutional for the Legislature to tell us when we had to be ready for trial. 739 S.W.2d 252-58. Seidel, on the other hand, tells us that a trial court can dismiss a case when a statute, e.g. Art. 42.12, Sec. 20, gives the court authority to do so. 39 S.W.3d 223-25. While it is clear that trial courts have no general authority to dismiss cases, it seems undisputed that they have authority in specific instances as authorized by statute, common law, and the constitution. See State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991). Art. 42.12, Sec. 20 isn't directed at us, but at the trial court. I think we'd be tilting at windmills, uphill against the wind on this one. Plus, if we say Meshell too often, won't we take some of the power out of the name?

That aside, I'll drag my burro up the hill behind you on this one. Art. 42.12, Sec. 20 obviously buys into the idea that defendants who manage to avoid revocation are somehow "rehabilitated." Boy, ain't that a funny one. Maybe a bill, supported by evidence of the convictions we can't use in court due to Art. 42.12, Sec. 20 and the crimes committed by those defendants after being "rehabilitated" might be in order. Especially since the Leg. should now be well aware that the pen isn't chock full of guys who violated probation for spitting on the sidewalk and failing to file their forms in triplicate.

[This message was edited by John Rolater on 06-18-02 at .]

Isn't there a difference between a judge's right (common law or otherwise) to dismiss a charging instrument (before conviction) and a judgment of guilt (after conviction). Surely, a judge's constitutional authority is more defensible under the former rather than latter circumstances.

Plus, John R. you don't need to rely on Meshell or an Art. II sec. 1 argument directly. Snodgrass already says this part of the statute is unconstitutional as in conflict with art. IV sec. 11. Neither Baker nor art. IV sec. 11A will support the ability of the court to set aside a conviction under the theory that it is only determining the punishment. As recently as 1998, the CCA said: "The legislature may exercise its power to give the courts authority to suspend sentences, but the authority must not intrude on the executive's power to pardon." Busby, 984 S.W.2d at 629. I say Fort Worth got it right on this one too. See Glenn, 884 S.W.2d at 193: "Nothing in the Constitution contemplates the full restoration of the rights of felons other than by executive pardon."

What is the cite for Snodgrass?

In Snodgrass, 150 S.W. at 177, the court said "where no motion for new trial has been filed, after the end of the term at which the judgment was entered, no court has the power or authority to grant a new trial or change its judgment at a subsequent term." The court also cited a North Carolina decision which says: "We search in vain for authority in the text-books of the law for a precedent for the court to pronounce judgment on the then conditions as they exist, and if subsequently, after the term conditions alter, to withdraw the judgment then entered, and pronounce an entirely different judgment." 150 S.W. at 174. And in Blackwell, 500 S.W.2d at 104, the court says: "By whatever name a grant of clemency may be called, the substance of the act and not the name by which it is designated controls its effects."

Youch! Martin, you're delving back into what an old friend of mine called "the books of good ideas."

But, are you sure that a case hasn't reached a different result in the mean time? King, 162 S.W. 890 seems to indicate that the Legislature came up with a constitutional alternative to the statue criticized in Snodgrass. Plus, the issue in Snodgrass seemed to be related to the absolute restoration of the defendant's civil rights. Anderson and Bradley,Texas Sentencing (1st Ed.) at 167 seems to say that the power under 42.12 Sec. 20 is no longer construed that way.

I agree that Art. IV, Sec. 11A, an amendment seemingly intended to overrule Snodgrass, appears ineffective for that task since it doesn't address the problem identified by the Court. Snodgrass might lend support for legislation dropping the dismissal portion of 42.12 Sec. 20, i.e. "after all, senator, it is unconstitutional anyway."

In the meantime, why doesn't someone try a State's appeal or mandamus on an Art. 42.12, Sec. 20 order and see what happens? It might help the cause if the underlying offense was a serious one.

John R., if you have already read Snodgrass, Baker, and King this morning and digested them in full, then your head must surely be spinning. I think Judges Harper and Prendergast could easily have written opinions for the U.S. Supreme Court (they certainly qualify for length). I just don't think the court has ever directly addressed the ideas expressed in Snodgrass since then. They were clearly under pressure to hold the second suspended sentence law constitutional, but I am uncertain whether it even included the questioned portion (it may have been added in 1947 or later). In any event, I take my cues from the Waco court... if they think Snodgrass has been overruled (922 S.W.2d at 669), then it probably hasn't.

By the way, although they did not have the amazing research tools we have, I think both the lawyers and the judges had (or took) a lot more time to consider their cases in those days and probably did come up with some pretty good ideas. Many of the opinions are just wonderfully written, so I enjoy every opportunity to delve back into the past.

While I agree you can sometimes find some gems in the dusty old books of the SW or Tex. Crim., there is so much dross that the effort is seldom worth it. I think the quality of opinion writing has improved dramatically in the last 20 years--and especially in the last 10--even in the cases in which all of us prosecutors would agree the court got the result dead wrong. So many of those old cases cite anything (or nothing) for support of their propositions, are based upon records markedly different than those we have now, and represent the view of an error-correcting court rather than a discretionary review court.

Plus, the Court has never been good at maintaining consistent precedent. In Clewis, Matthew Paul wrote this awesome brief citing many old precedents for proposition that factual sufficiency reviews were wrong. Judge Clinton's concurring opinion cited as many old precedents that (sort of) supported the silly practice.

Plus, whatever dust it is on those old books really messes me up.

I do not propose Snodgrass (or any case) should carry any weight merely because it is old. I doubt your friend meant to say anything different. And I agree there are very many poorly written (reasoned)opinions from those days as well and that I have noticed some improvements in some opinions more recently. Frankly, the opinions of the Supreme Court have always impressed me more than those of the 3-man CCA or Court of Appeals. Whether they are useful as a precedent or not, the facts of some of the old cases and other things about them make for interesting reading and provide useful examples of writing styles. Ah-choo!

You boys might want to move this conversation over to the "appellate" area before you scare someone. In the meantime, last time I checked Dallas County was doing its bulk probation discharges as form discharge-and-dismissal orders. Maybe you would like to leave S.W.1st alone and do something about that, John??

Sorry Sue. If we could learn to stay on topic there would be no need to try to figure out how to actually "move" one of these discussions to its proper place. My question now is, who first came up with the form of these orders, because I agree almost everywhere seems to have used them in most every case without any real thought about what they said or should say. Did some defense attorney draw one as broad as possible, and since his was first it became the standard in County X and then when a judge or CSCD needed one in County Y they just asked X for a copy of theirs and so forth? What I call the "without day" syndrome.

Martin, we all took a vote, and the results are in.

You may not write a sentence with more than 10 words, and you simply must use at least one comma in each sentence. Finally, no paragraph may be more than two sentences, and no single entry in the user group may be more than two paragraphs.

We hope you understand and appreciate our concerns.

I will attempt to comply, but I may just have to drop out of participating and be content as a lurker. Please identify "we".

I think "we," Martin, refers to the royal Bradley we -- you know, the originator of the terse response. Actually you can see that Bradley's been working with the legislature too long, because he's casually proposing rules that "we" could never apply to him.

If a judge sets aside the verdict or permits the defendant to withdraw his plea and dismisses the charging instrument under 42.12 �20(a), isn't that the same result as a successfully completed deferred? Under �5(c), "the judge shall dismiss the proceedings against the defendant and discharge him". I guess if your judge is doing these kind of straight probation discharges as a routine matter, there isn't much point in ever bothering to try to hang in there for a straight probation instead of a deferred. I'm going to look at what form we're using...