Dallas Criminal Defense Lawyer Blog

Everyone on paper wants the same thing, to be off paper and done with probation. The best way to finish probation is to apply for judicial clemency under 42.12(20). This provision allows the judge to not only terminate your probation early, but to do so in a way that effectively dismisses the underlying charge (with a few exceptions).

What does a DWI defendant possibly have in common with a sex offender? Both are ineligible for early release under this provision.

ec. 20. (a) 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 fulfillment of the
conditions of community supervision, and the expiration of the
period of community supervision, the judge, 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 the judge discharges the defendant under this
section, the 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, 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 Services may consider the fact that the
defendant previously has received community supervision under this
article in issuing, renewing, denying, or revoking a license under
that chapter.
(b) This section does not apply to a defendant convicted of
an offense under Sections 49.04-49.08, Penal Code, a defendant
convicted of an offense for which on conviction registration as a
sex offender is required under Chapter 62, as added by Chapter 668,
Acts of the 75th Legislature, Regular Session, 1997, or a defendant
convicted of an offense punishable as a state jail felony.

The Court of Criminal Appeals recently addressed this provision in 2002 in Cuellar vs State, 70 SW 3d 815.

There is, however, a second, less common type of discharge under Article 42.12, § 20. This second type of discharge 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).5 Once the trial court judge signs

Probation can be tough for a lot of reasons. From failing drug tests, to failing to report, to missing a meeting there are dozens of ways to get your probation revoked. It has come to my attention that the revocation process is not well understood by probationers. Let me hit a few high points.

No Juries
A probation revocation hearing is always in front of a judge. You have no right to a jury trial.

Range of Punishment- How much time are you looking at?
Depends. If you plead for deferred adjudication then you are open for the entire range of punishment for your original offense. For example, if you are on deferred for a first degree felony you could anything from 5-99 years, or the judge could continue you on probation.

If you are on "straight" probation (non-deferred) then your maximum sentence has already been decided. Let's take a third degree felony with a 2 for 5 plea. You are sentenced to two years in jail, probated for five years. 5 years is your maximum sentence. The judge could give you less time, or you could work out a plea bargain for less time.

Beyond a reasonable doubt? Nope.
The State need not prove you violated probation beyond a reasonable doubt. Instead, it's a "preponderance of the evidence." What is POTE? 51%. That is, it's more likely than not, or the evidence is 51% in favor.

Failure to pay
The State wants its money and will revoke you for not paying fines, fees, and costs. Inability to pay is an affirmative defense that the defendant has to prove by a POTE.

New Charges
You are on probation and you get arrested again. First, you must report an arrest within 48 hours of release from jail. However, getting arrested is not enough to revoke your probation. The State must prove by a POTE that you committed a new offense.

If you get arrested call your attorney, and your PO, immediately.

Bond
Deferred probationers are entitled to bail. Word of this requirement has not spread to Kaufman county where felony probationers are almost always denied bail. The reason? Whoever typed the "recommended bond schedule" listed felony probation revocation cases as "no bond". Being entitled to bond isn't as great as it sounds. I've seen these bonds set at $200,000. Bond is not supposed to used for oppression, but we do it anyway.

If you are not on deferred no bond could be set, but you can still have a hearing to lower it. However, you are not entitled to bond.

Can I be reinstated?
Depends on the charge, and what county you are in. I have found that paying your fines and fees is a great place to start. The government loves money and they may sell you back some freedom for cash.

A better question may be "Should I be reinstated?" Some people suck at probation. You can't drink, use any drugs, or commit any new crimes. Also, you have to work, report, do community service, and take classes. It may be too much to handle for some. Many probationers choose to just sit out a sentence rather than complete another year or two of supervision.

I can't say I blame them. Our community supervision system almost guarantees failure. We put addicts on probation, and then act surprised when they test positive. We put the indigent on probation and then act when surprised the can't pay.