Defendant pled to Class A theft in 2010. Probation expired under normal circumstances in 2011. Now we have a motion under 42.12 sec 20 to set aside the verdict, withdraw the plea and dismiss....which would then (as I understand the new expunction laws) allow an expunction.

Has anyone seen this before? How did you fight it...if you did?

Thanks.

Lisa L. Peterson
Nolan County Attorney

They served community supervision, so they're not eligible for an expunction. Several courts have held that 42.12 sec.20 doesn't trump the expunction statute. See Perdue v. Texas DPS, 32 S.W.3d 333, 335 (Tex. App.--San Antonio 2000, no pet.); Texas DPS v. J.H.J., 274 S.W.3d 803, 808 (Tex. App.--Houston [14th Dist] 2008, no pet.).

The changes to the expunction statute didn't change the "no community supervision" requirement, so those cases would remain in effect.

Is there a good argument against the dismissal? My concern is this - the defendant stole $1400 from his employer. Not only was he $100 from a felony, but he took from someone who trusted him.

As I read the statute, if he is convicted of another theft, this can't resurface until punishment - and even then, it is a dismissal.

How have you successfully fought this?

Lisa L. Peterson
Nolan County Attorney

I have never had to deal with this. I was actually a little surprised when I read that statute. Of course, the dismissal is totally in the judges discretion so policy arguments and seriousness of offense arguments would obviously be made. Policy being that dismissing theft cases is just stupid. jk

Apart from from that, the language is pretty specific in the sentence describing the judge's ability to dismiss the accusation. "If the judge discharges the defendant under this section , the judge may..." This section speaks specifically to reductions or terminations of community supervision. So, in your case, I would make the argument that because the supervision ended naturally and the judge did not grant a reduction or early termination to the probation sentence that section 20 would not apply and the judge would not have the discretion described. I don't know how that would fly but it seems to be a valid argument. The legislature may have intended that this section only apply to probationers who went above and beyond to do their probation and get early release or termination. There is no doubt that the applicable dismissal language applies only to cases discharged under this section.

Anyway, it may be an argument to make?


Ryan Hill

[This message was edited by Boots on 12-21-11 at .]

Thanks. Anyone know how / when this crept in? It really seems dangerous to me. I know that it says judges may be told of the offense after a future conviction, but what good does that do? If, for instance, it was a FV Assault, then the "dismissed" case can't be used for enhancement. Besides - if it happened somewhere other than in your jurisdiction, how do you find out about it?

I'm no legislative guru...but...does this need fixing?

Lisa L. Peterson
Nolan County Attorney

quote:

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Originally posted by Lisa Peterson:
Anyone know how / when this crept in?

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I think it's been in the law since before anyone on this board was licensed.

As for a legislative solution, I'm happy to visit with any prosecutor who wants to look into that option. But remember--we're here to help you do it, not do it for you!

After probation has expired, if the discharge order did not include setting aside the verdict, withdrawing the plea and dismissal of the charging instrument ("judicial clemency), there is a jurisdictional argument.

opinion

That is essentially the judicial clemency provision of Art 42. There is a good argument that the trial court lost jurisdiction to grant the discharge/set aside the conviction if the court previously discharged and dismissed the case. We see these in Dallas.

Curiously, if a court does grant judicial clemency there is no corresponding expunction provision.



Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803 (Tex. App. Houston 14th Dist. 2008)

That's a good win. I think we need to make that argument now.

Good win.

Ryan Hill
Assistant County Attorney
Hood County, Tx

Thanks, everyone. Since the order setting aside was done without notice to the State or counsel of record for the Defendant, I'm filing a motion to set it aside with the intent to back it out and enter an order terminating the probation. Then I can get to the argument mentioned earlier...

Lisa L. Peterson
Nolan County Attorney

quote:

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Originally posted by Shannon Edmonds:
As for a legislative solution, I'm happy to visit with any prosecutor who wants to look into that option. But remember--we're here to help you do it, not do it for you!

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And if anyone wants an example of how this antiquated law can be abused, here's a candidate:

Former City Rep. Quintana's Conviction Deleted From Record

Thanks, Shannon!

Lisa L. Peterson
Nolan County Attorney