                            QBfficeof tfie !ZUtornep@enera
                                        &ate of Eexae
DAN MORALES
 ATTORNEY
       GENERAL                              May 14, 1996

      The Honorable George W. Bush                  Opinion No. DM-393
      Governor of Texas
      P.O. Box 12428                                Re: Whether a pardonable conviction
      Austin, Texas 78711,                          exists after the completion of “regular” or
                                                    “shock” community supervision under
                                                    Code of Criminal Procedure article 42.12,
                                                    section 20 (RQ-860)

      Dear Governor Bush:

              You ask us two questions about section 20 of article 42.12 of the Code of
      Criminal Procedure. Subsection (a) of section 20 grants the judge “the discretionary
      power to set aside [the defendant’s] conviction and restore his civil rights.” Shepherd Y.
      Trcviino, 575 F.2d 1110, 1115 (5th Cii. 1978) (reviewing constitutionality of predecessor
      of subsection (a)), cert. denied, 439 U.S. 1129 (1979). Subsection (a) provides:

                     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 fbKllment 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 &femAmt    to withakw   his plea,
                and shall aYsmis.9 the accusation, complaint. information        or
                indictment against the akfenaknt, who shall theretiter be released
               from all per&ties and akabilities    resulting from the offense or
                crime of which he has been convicted or to which ‘he has pleaakd
                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 Setvices may consider the fact that the
The Honorable George W. Bush - Page 2            (DM-393)




               defendant previously has received community supervision under
               this article in issuing, renewing, denying, or revoking a license
               under that chapter. [Emphasis added.]

Section 20 “does not apply to a defendant convicted of an offense under Sections
49.04-49.08 [(driving, flying, or boating while intoxicated; intoxication assault or
manslaughter; or an enhanced offense)], Penal Code, or a defendant convicted of an
offense punishable as a state jail felony.” Code Crim. Proc. art. .42.12, § 20(b).


        Liiting  your question to a person who has been on “regular” community
supervision under section 3 or 4 of article 42.12 or on “shock” community supervision
under section 6 of that article, you ask whether such a person is eligible for a pardon’ a&r
the judge who discharged the person pursuant to section 20 also granted the relief that is
emphasiaed above. We believe such a person is not eligible for a pardon.


        Once the judge has set aside the verdict or permitted the defendant to withdraw
her guilty plea and has dismissed the charging instrument, subsection (a) of section 20
operates to release the defendant from “all penalties and disabilities resulting from the
offeme or crime of which he has been convicted or to which he has pleaded guilty.” Code
Crim. Proc. art. 42.12 9 20(a). Subsection (a) provides, however, that the defendant’s
conviction or guilty plea shall be considered in assessing the penal consequences of a
subsequent offense and in determining whether the defendant should be issued a license to
operate a child-care or child-placing agency or whether such a license should be renewed
or revoked, see Hum. Res. Code ch. 42.


       These provisions in subsection (a) are similar to those in section 5(c)z of article
42.12, which we described in Attorney General Opinion DM-349 as follows:

               Subsection (c)        provide[s in part] that, generally, “[a]
          dismissal and discharge under this section may not be deemed a
          conviction for the purposes of disqualifications or disabilities
          imposed by law for conviction of an offense,” but that the
          defendant’s prior receipt of deferred adjudication community
          supervision may be considered in the punishment phase of a
          prosecution for a subsequent offense or in the process of determining
          whether to issue, renew, deny, or revoke either of the following: a
          license to operate a child-care facility or child-placing agency or a


         ‘Weassumcyouinquino~abouta~nthatisnotbaccdonafindingofactualinnocencc,
sod we limit this epinion accordtngly.

       ‘Section 5 pvidcs for defertwtadjudicationcommunitysupervision.


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The Honorable George W. Bush - Page 3            (DM-393)




           license or registration to provide rehabilitative mental health or
           medical services to sex offenders.

Attorney General Opiion DM-349 (1995) at 3 (quoting Code Grim. Proc. art. 42.12,
$5(c)(l)) (citations omitted). We reasoned that the provisions in section 5(c) relating to
subsequent prosecutions and licensing matters do not “constitute continuing penalties or
disabiities” but rather “are merely liited grants of authority to consider the fact of the
defendant’s prior guilt when that guilt is relevant to the defendant’s character.” Id. at 6.
Then we also noted that a governor’s pardon, when not based on the governor’s tindmg
that the defendant is actually innocent of the offense, “may reach only the punishments,
penalties, disabiities, and disqualiications that the law would attach to the pardoned
conviction” and that such a pardon “neither atEcts the penal consequences of any
subsequent offenses nor restores a person’s reputation or good character.” Id. at 5. We
concluded:

            [T]o the extent that the law permits the fact of a prior conviction to
            be considered (1) in assessing the penal consequences of a
            subsequent offense or (2) in determining whether the person
            possesses the good character required for licensing in a position of
            responsibility and trust, the governor has no power to intervene by
            granting such a pardon.

Id.   The reasoning of Attorney General Opinion DM-349 applies here as well.

         In your ‘request letter you describe a situation involving an applicant for a pardon
who had been convicted of delivery of a controlled substance and who was discharged
from “shock” probation in 1984. The applicant submitted a copy of a document captioned
“Certification of Proceedings,” which bears the signatures of the presiding judge of
Criminal District Court No. 4 of Tarrant County and a deputy district clerk of that wunty
and which contains atter the word “‘Proceedings” the following notation: “Probation Set
Aside and Dismissed on 3-15-84.” You note the ambiguity of the notation: “Set Aside”
and “Dismissed” appear to modify “Probation,” but the writer could have intended the
notation as an elliptical way of indicating that the verdict was “Set Aside” and the
charging iwtrument was “Dismissed,” that is, that the court granted the relief authorized
in section 20(a). The document contains no 8nther information, and we understand that
your office has no other information, concerning the final disposition of that prosecution.
You apparently assume that the document is a copy of the very entry of the court’s order
that tinally disposed of the prosecution. Based on that assumption, you ask: “[IIf the
Governor or the Board [of Pardons and Paroles] determines that the order is so
ambiguous that the Court’s intention cannot be determined, has the court lost its
jurisdiction to clarify its intention by some modified order?’

       We suspect the above-described “Certification of Proceedings” is not in fact the
very entry of the court’s disposition of the case in question. The accuracy of the language
of the certification is questionable; we have found no precedent for a proceeding that


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The Honorable George W. Bush - Page 4              (DM-393)




results in both “setting aside” and “dismissing” an order of probation.3 It may be that the
presiding judge actually signed a separate order that more clearly indicates the specific
tinal disposition of that case. If there is such an order, then the pardon applicant should be
required to submit a copy of that order for review if the Board of Pardons and Paroles or
the governor CBnnot determine, based on the present record, whether the judge ordered
the relief necessary under section 20(a) to release the defendant from all penalties and
disabilities.

         If the above-desctibed “Certification of Proceedings” is in fact the written entry of
the court’s disposition of the case in question and if by clerical error it does not wrrectly
reflect the actual disposition rendered by the wurt, then we believe the wurt would have
the inherent power to enter an order mmc pro fttnc correcting the disposition entry. See,
e.g., Johnston v. Siate, 323 S.W.2d 449,451 (Tex. Grim. App. 1959); Ex parte Honnen,
228 S.W.2d 864,866 (Tex. Grim. App. 1950).

                                      SUMMARY

                 A person who has been on “regular” or “shock” wmmunity
           supervision is not eligible for a governor’s pardon a&r a judge
           discharges the person pursuant to section 20 of Code of Criminal
           Procedure article 42.12 and, in so doing, also restores the person’s
           civil rights by setting aside the conviction and dismissing the charging
           instrument.

                A wurt has the inherent power to enter an order mmc pro tune
           correcting the written entry of the wurt’s disposition of a case if by
           clerical error the entry does not wrrectly reflect the actual
           disposition rendered by the court.




                                                          DAN MORALES
                                                          Attorney General of Texas


        “In a search of a computer data base of Tews case law WCfound several repotted cases in which
the anui set astde an order revokingprobation. See, e.g., Carr v. State, 143 S.W.zd 51 (lb. App.-
Houston [lst Llii.] 1987, no wit); AtchisonY. State, 716 S.W.2d 185 flex. App.-Fort Worth 1986, no
tit).  In other casea the cam set aside for voidness an order grcmtingpbcltion. See. ex., State Y.
Cuny, 599 S.W.M 630 (l’ex. Grim. App. 1980); Walker v. State, 562 S.W.Zd 864 flex. Grim. App.
panel Op.] 1978). In still othercazs ~hecourtdismisseda motionto revokeprobation. See, e.g.. Fried1
Y. St&, 773 S.W.Zd 72 flex. ALP.-Houston [la D&t.] 1989, no writ); Stow11 Y. St&-, 683 S.W.Zd 891
~cx. ALP.-Fort Wozth 1985, writ rrfd). We found no case, however, whcrethccomthoulactssideaod
diamiaacdan order of probation.


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The Honorable George W. Bush - Page 5    (DM-393)




JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General




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