So, I've been handed a few expunctions/nondisclosures/misidentifications and these random other motions that I need help understanding.

I've got 3 motions entitled motions to set aside conviction. They all cite 42.12 sec. 20.
These people do not qualify for an expunction or for a nondisclosure.

Has anyone seen a motion relying on 42.12 sec 20 to get a conviction kicked?

From the Court of Crim Appeals in CUELLAR v. STATE, 70 SW3d 815

quote:

---

There is, however, a second, less common type of discharge under Article 42.12, � 20. This second type of discharge *819 is not a right but rather is a matter of �judicial clemency� within the trial court's sole discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex.Crim.App.1996) ( �[Section] 20 provides a mechanism to release a convicted person of all legal disabilities upon successful completion of probation.�); Hoffman v. State, 922 S.W.2d 663, 668 (Tex.App.-Waco 1996, pet. ref'd) (�Among the district court's several powers is the authority to dismiss an indictment or information against a convicted felon once he has successfully completed the terms of his probation.�). That is, when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may �set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.�4 Tex.Code Crim. Proc. 42.12, � 20(a);5 State v. Jimenez, 987 S.W.2d 886, 888 n. 2 (Tex.Crim.App.1999) (�Under Texas law, successful completion of probation allows the judge to dismiss some charges without a final conviction.�). These words are crystal clear. There is no doubt as to their meaning. See Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991).6 If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom �released from all penalties and disabilities� resulting from the conviction. Art. 42.12, � 20(a).

---

Robert, what have you done with these?
Do you respond or leave it up to the Judge to decide?

Thanks!

I have never agreed to an order that grants judicial clemency. At best--I will tell the judge that the state has no position on the early termination, but point out to the judge that the proposed order not only grants the early termination, but also discharges and sets aside the indictment and conviction.

I always ask to see the proposed order the defense is submitting to terminate a straight probation to make sure that it only terms the probation and nothing more.

The standard order that our probation department submits to the Court upon a regular termination of probation speaks of only terming the community supervision.

You may see more request like this. The State bar which frequently offers free cle credit has a class offering a free half hour of cle credit with .25 hours of ethics included. You can watch it for free over the internet. In that lecture they advocate that defense attorneys make sure their clients releases from probation include this language.

Hi James,

Do you know the name of the class?
It might be worth some of us at the office watching it so we know what they're likely to argue.

thanks.

Set-asides used to be (and may still be) a common disposition in Dallas County. Outside of Dallas, I believe it to be very rare.

FYI, a bill will be filed this legislation session to retroactively allow set-asides to be either expunged or sealed under an order of non-disclosure. Keep that in mind when proceeding on such motions.

The name of the class is:

Unforeseen Consequences of Criminal Convictions

It can be viewed for free at
www.texasbarcle.com

Sorry, I should have included this in my first post.

Thanks. I suspect there's some CLE in my near future.

So, let's say that the set aside was granted.

The order states:
1. plea is changed to not guilty
2. any and all previous accusations, etc in the above cause are in all things discharged;
3. Court's verdict of guilt is set aside to not guilty and
4. Def is relased from all penalities and disabilities.

What, as a DA's office, do we do with this?
Do we treat it like a nondisclosure?
Do we change all of our records?
Do we have a duty to serve the PDs, Clerks, etc...with notice of the order?

Thoughts?

quote:

---

Originally posted by James:
The name of the class is:

Unforeseen Consequences of Criminal Convictions

---

Lol. Unforeseen by who? This is what the legislature set up.

My initial thought would be "Why would we do any of the things you mention?" We don't do them now when a probationer terms his deferred and receives the "set aside" language in the order.

I don't see why a defendant who was actually convicted of the offense would receive preferential treatment over someone who successfully completed a deferred.