                             NUMBER 13-15-00367-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                          Appellant,

                                            v.

FELICIANO VILLARREAL PEREZ,                                                    Appellee.


                     On appeal from the 93rd District Court
                          of Hidalgo County, Texas.


                                   OPINION
            Before Justices Rodriguez, Benavides, and Perkes
                      Opinion by Justice Benavides
       In a case of first impression for this Court, we are asked to determine whether the

trial court acted without jurisdiction when it granted appellee Feliciano Villarreal Perez’s

motion for judicial clemency under article 42.12, section 20(a) of the code of criminal

procedure nearly eleven years after his community supervision was discharged.          See

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 20(a) (West, Westlaw through 2015 R.S.).
Because we hold that the trial court lacked jurisdiction to act in this case, we reverse and

render.

                                        I.      BACKGROUND

        On October 9, 2003, Perez pleaded guilty to possession of marijuana in an amount

of four ounces or less, but more than two ounces, a Class A misdemeanor.                     See TEX.

HEALTH & SAFETY CODE ANN. § 481.121(b)(2) (West, Westlaw through 2015 R.S.). Perez

elected to have the trial court assess his punishment. The trial court ordered that Perez

spend one-year imprisonment in the Hidalgo County jail, and pay a fine of $2,000.00 as

well as costs. The trial court further suspended Perez’s sentence and placed Perez on

community supervision for one year, subject to certain conditions.             See TEX. CODE CRIM.

PROC. ANN. art. 42.12 § 3 (West, Westlaw through 2015 R.S.). On November 2, 2004,

after the expiration of Perez’s community supervision, the trial court discharged Perez

from community supervision.

        On June 30, 2015, Perez filed a motion for judicial clemency pursuant to article

42.12, section 20(a), and specifically requested that the trial court grant his request

because despite having completed his probation, he has experienced “difficulty regarding

his immigration status” as a result of his record of conviction.

        On July 14, 2015, after a hearing, 1 the trial court granted Perez’s request for

judicial clemency and ordered that Perez’s plea of guilty and corresponding judgment in

Perez’s underlying case be set aside. It further ordered that all charges, accusations,



        1 A record of this hearing was not made a part of the appellate record. However, because the
issue before us deals with purely legal questions, a transcript of this hearing is not necessary for the
disposition of this appeal.


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complaints, and indictments in the underlying cause be dismissed.                 Finally, the trial court

ordered that Perez be released “from all penalties and disabilities resulting from” the

underlying possession conviction.                   The State subsequently appealed. 2      See id. art.

44.01(a)(2) (West, Westlaw through 2015 R.S.) (giving the State a right to appeal a trial

court’s order modifying a judgment).

                                        II.         JUDICIAL CLEMENCY

       By its sole issue, the State contends that the trial court acted without jurisdiction

when it granted Perez judicial clemency, thus making its order void.

       A. Jurisdiction of Trial Court to Order Judicial Clemency

       A trial court’s jurisdiction refers to that court’s power to hear and make legally

binding decisions on the parties involved.                 See State v. Dunbar, 297 S.W.3d 777, 780

(Tex. Crim. App. 2009). Jurisdiction is “an absolute systemic requirement” and can be

raised for the first time on appeal.            Id.

       In criminal cases, a trial court’s jurisdiction consists of the power of the court over

the subject matter of the case, conveyed by statute or constitutional provision, coupled

with personal jurisdiction over the accused, which is invoked in felony prosecutions by the

filing of an indictment or information if indictment is waived.              Id. A lack of personal or

subject-matter jurisdiction deprives a court of any authority to render a judgment.                   Ex

parte Moss, 446 S.W.3d 786, 788 (Tex. Crim. App. 2014). Any action taken by a trial

court without jurisdiction is void.           Id.    Generally, if no community supervision is imposed,

no motion for new trial or motion in arrest of judgment filed, and no appeal is taken, then



       2   Perez did not file an appellate brief in this case.

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the trial court’s personal jurisdiction over an accused terminates thirty days after

sentencing.      Dunbar, 297 S.W.3d at 780.

        But what if community supervision is ordered, as in this case?                       No authority

directly speaks to how long a trial court’s personal jurisdiction over a defendant who has

been placed on community supervision extends.                 Yet, the court of criminal appeals has

held that a source of jurisdiction must be found to authorize a trial court’s orders.                   See

State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002) (holding that a trial court

acted without jurisdiction by ordering DNA testing without statutory or any other source of

authority).

        When a defendant’s sentence is suspended, and he is placed on community

supervision pursuant to article 42.12 of the code of criminal procedure, the community

supervision may be discharged in one of two ways.                   See Cuellar v. State, 70 S.W.3d

815, 818–19 (Tex. Crim. App. 2002).3 The first is the usual method of discharge, in

which (1) a defendant has either completed the entire term of community supervision and

has satisfactorily fulfilled all of the conditions of community supervision, whereupon the

trial court shall discharge the defendant from community supervision; or (b) although not

mandatory on the part of the trial court, it may discharge a defendant early if the defendant

has satisfactorily completed one-third of the original community supervision period or two



         3 Although the court of criminal appeals has dissected article 42.12, section 20 into two methods

of discharge, technically there are three methods of discharge: (1) mandatory discharge upon complete
fulfillment of all conditions of community supervision; (2) permissive early discharge, after a defendant has
completed one-third of the original community supervision period or two years of community supervision,
whichever is less; and (3) discretionary judicial clemency, granted by the trial court upon mandatory or
permissive discharge. See TEX. CODE OF CRIM. PROC. ANN. art. 42.12 § 20 (West, Westlaw through 2015
R.S.); see also Cuellar v. State, 70 S.W.3d 815, 818–19 (Tex. Crim. App. 2002) (explaining the “two entirely
different types of discharge”). However, to avoid any confusion, we will discuss the “two . . . types of
discharge” as explained in Cuellar. See Cuellar, 70 S.W.3d at 818–19.

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years of community supervision, whichever is less.        Id. (citing TEX. CODE CRIM. PROC.

ANN. art. 42.12 § 20(a)).    Regardless of which prong is taken under the usual method,

the defendant still has a conviction on his record, despite never having spent a day in jail,

and even though such conviction may not be “final” for other purposes.        See Cuellar, 70

S.W.3d at 818.

       The second type of discharge is known as “judicial clemency.” Judicial clemency

is within the trial court’s sole discretion, after a trial court “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,” by permissively setting

       aside the verdict or [permitting] the defendant to withdraw his plea, and
       [dismissing] 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.

Id. at 819; see TEX. CODE CRIM. PROC. ANN. art. 42.12 § 20(a). If a trial court exercises

judicial clemency, “the conviction is wiped away, the [charging instrument] is dismissed,

and the person is free to walk away from the courtroom released from all penalties and

disabilities resulting from the conviction.”   Cuellar, 70 S.W.3d at 819 (internal quotations

omitted).   With limited exceptions, see TEX. CODE CRIM. PROC. ANN. art. 42.12 §

20(a)(1)–(2), the conviction disappears.        Cuellar, 70 S.W.3d at 819.       The Cuellar

decision further makes clear that the granting of judicial clemency is limited by the

defendant’s action of completing his community supervision.       Id. (citing State v. Jimenez,

987 S.W.2d 886, 887 n.2 (Tex. Crim. App. 1999) (“Under Texas law, successful

completion of probation allows the judge to dismiss some charges without a final



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conviction.”) (emphasis added); Wolfe v. State, 917 S.W.2d 270, 277 (Tex. Crim. App.

1996) (“Article 42.12 § 20 . . . provides a mechanism to release a convicted person of all

legal disabilities upon successful completion of probation.”) (emphasis added)).        If the

Legislature intended to provide the trial court with continuing jurisdiction to order judicial

clemency at any time after discharging a defendant from community supervision, it would

have expressly done so.       See Patrick, 86 S.W.3d at 595 n.13 (outlining the various

statutes and contexts in which the Legislature has granted courts with continuing

jurisdiction).   Thus, absent further guidance from the Texas Court of Criminal Appeals or

the Legislature, we conclude that the trial court must order judicial clemency upon or after

either mandatory or permissive discharge occurs, but before the trial court loses plenary

jurisdiction.

       Finally, we note that two of our sister courts have taken an identical approach to

ours, and we hereby join them today.        In the more recent opinion of the two, a split

Amarillo court held that the trial court acted without jurisdiction when it set aside a

defendant’s conviction sixteen years after discharging a defendant from community

supervision. See State v. Shelton, 396 S.W.3d 614, 619 (Tex. App.—Amarillo 2012, pet.

ref'd). Similarly, in 2002, the Waco Court held that the trial court lacked jurisdiction to

issue an order of judicial clemency more than three years after discharging a defendant.

See State v. Fielder, 376 S.W.3d 784, 787 (Tex. App.—Waco 2011, no pet.).

B.     Application

       The record in this case shows that Perez was discharged from community

supervision in the usual method, after he fully competed his term and all the

corresponding conditions on November 2, 2004. The trial court granted Perez judicial

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clemency on July 14, 2015, nearly eleven years after his “usual method” of discharge

from community supervision.      Thus, pursuant to our holding today, we conclude that the

trial court lacked jurisdiction to order judicial clemency in this case, making its order void.

See Ex parte Moss, 446 S.W.3d at 788. We sustain the State’s sole issue on appeal.

                                     III.   CONCLUSION

       We reverse the trial court’s order granting Perez judicial clemency and render

judgment ordering Perez’s motion for judicial clemency dismissed for lack of jurisdiction.




                                                                 GINA M. BENAVIDES,
                                                                 Justice


Publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
7th day of July, 2016.




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