When I first read Cuellar, 40 S.W.3d 724 I suggested we all encourage our judges to abandon the standard form of discharge of probationers to exclude the language about setting aside the verdict and dismissing the indictment. Now that approach is mandatory. I do not think most judges recognized that they were making a determination that the probationer had been completely rehabilitated and was ready to take "his place" as a law-abiding member of society in signing these orders. In my area of the State, at least, I am also not sure that this form of discharge has been "less common". I personally cannot believe that Judge Keasler is the only one of the eight that could understand the plain language of Sec. 46.04.
Has anyone argued that the order violates the separation of powers. I thought only the executive branch had clemency power. There is nothing in the state constitution giving a judge constitutional authority to wipe out a conviction on the basis of clemency.
How then can the Legislature assign that power to the judicial branch without violating the separation of power enunciated in the state constitution? Let's argue it!!
Back when the Concealed Handgun License law was new, I was shanghaied to work on a trial brief for a CHL appeal Bexar county. The case finally ended up in the Texas Supreme Court. The issue was whether a discharge under Article 42.12, Section 20 was a "conviction" for purses of the CHL statute. During my research I did run across a Fort Worth Court of Appeals case in which the court dropped a footnote to the effect that it believed that Article 42.12, Section 20 violated the separation of powers betweeen the Legislative and Executive branches by infringing on the Govenor's power of pardon.
This form of discharge is very common in Harris County -- almost all probations are discharged with this language! SCARY!!
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