                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-14-00258-CV


              TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLANT

                                          V.

                         JOSEPH TRENT JONES, APPELLEE

                            On Appeal from the County Court
                                 Childress County, Texas
              Trial Court No. 2193, Honorable Rodney Jay Mayden, Presiding

                                    April 1, 2015

                                     OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, the Texas Department of Public Safety (TDPS), appeals the trial

court’s judgment by which TDPS’s denial of Joseph Trent Jones’s application for a

concealed handgun license was overruled and judgment rendered that Jones was

eligible for a concealed handgun license. On appeal, TDPS contends that a 2010

deferred adjudication for a misdemeanor offense rendered Jones ineligible for such a

license. Jones responds that the trial court correctly concluded that the 2010 deferred
adjudication was “set aside” by an early release order entered by the convicting court.

We will affirm.


                             Factual and Procedural History


       On August 20, 2010, Jones was placed on deferred adjudication for the

misdemeanor offense of deadly conduct in the County Court of Childress County,

Texas, trial court cause number 19,811. On August 10, 2012, by written order, Jones

was released early from deferred adjudication, the charges were dismissed, and the

order placing Jones on deferred adjudication community supervision was “set aside.”


       After identifying Jones and outlining generally the terms of his probation, and

recognizing that Jones had complied with all the terms of his probation, the trial court’s

Early Release Order provides as follows:


       The Court is therefore of the opinion that the ends of justice have been
       served and the interests of the defendant and of society will be best
       served by discharging the defendant from further probation on this case.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the
       Deferred Probation therefore entered against defendant in this case be
       and the same is hereby set aside, the indictment and/or complaint be
       dismissed and the defendant is hereby released from all penalties and
       disabilities resulting from the deferred sentence in this cause.

       In April 2013, Jones applied for a concealed handgun license and, by letter dated

June 21, 2013, TDPS denied that application on the basis of the 2010 deferred

adjudication for deadly conduct, considered by TDPS to be a misdemeanor conviction

within the past five years that rendered Jones ineligible for a concealed handgun license

until, at least, August 2015. Jones sought judicial review of that decision in the Justice

Court, Precinct 1, of Childress County, which affirmed TDPS’s denial of Jones’s

                                            2
application. Jones appealed that order to the County Court of Childress County, where,

after a trial de novo, the trial court found that Jones was eligible for a concealed

handgun license and that the 2010 deferred adjudication had been “set aside” and, by

statute, was no longer considered a conviction for the purposes of eligibility for a

concealed handgun license. TDPS has appealed, maintaining that the Early Release

Order did not serve to make Jones’s deferred adjudication an exception to the definition

of “convicted.”


                        Applicable Law and Standard of Review


       The outcome of the instant case will turn on the interpretation and application of

the Concealed Handgun Act, outlined in the Texas Government Code and governing

the application and approval of a concealed handgun license. We will refer to this

statutory scheme generally as the Act. Also relevant to the application of the Act’s

provisions will be provisions from the Texas Code of Criminal Procedure, primarily

Article 42.12 and its section governing deferred adjudication.


       The Act identifies certain people who are not eligible to receive a concealed

handgun license. Among those are people who have been convicted of a misdemeanor

within the preceding five years:


       A person is eligible for a license to carry a concealed handgun if the
       person: has not, in the five years preceding the date of application, been
       convicted of a Class A or Class B misdemeanor or equivalent offense or of
       an offense under Section 42.01, Penal Code, or equivalent offense.

TEX. GOV’T CODE ANN. § 411.172(a)(8) (West 2012).




                                            3
       Although, generally and in the most technical sense, a deferred adjudication is

not considered a conviction in that adjudication has, by definition, been deferred, the Act

treats certain deferred adjudications as convictions for the purposes of determining

eligibility for a concealed handgun license but excepts others:


       “Convicted” means an adjudication of guilt or, except as provided in
       Section 411.1711, an order of deferred adjudication entered against a
       person by a court of competent jurisdiction whether or not the imposition
       of the sentence is subsequently probated and the person is discharged
       from community supervision. The term does not include an adjudication of
       guilt or an order of deferred adjudication that has been subsequently:

       (A)    expunged;

       (B)    pardoned under the authority of a state or federal official; or

       (C)    otherwise vacated, set aside, annulled, invalidated, voided, or
              sealed under any state or federal law.

Id. § 411.171(4) (West Supp. 2014). At issue here will be Subsection C, dealing with a

deferred adjudication that has been “otherwise vacated, set aside, annulled, invalidated,

voided, or sealed under any state or federal law.” See id. And the issue before us

becomes clear: whether the 2012 Early Release Order served to “set aside” the 2010

deferred adjudication such that the deferred adjudication was no longer considered a

conviction for the purposes of the Act.


       To fairly address the issue, we must also consider the Texas Code of Criminal

Procedure provision that governs the discharge, including early discharge, of a

defendant from deferred adjudication:


       On expiration of a community supervision period imposed under
       Subsection (a), if the judge has not proceeded to adjudication of guilt, the
       judge shall dismiss the proceedings against the defendant and discharge
       him. The judge may dismiss the proceedings and discharge a defendant,


                                             4
        other than a defendant charged with an offense requiring the defendant to
        register as a sex offender under Chapter 62, prior to the expiration of the
        term of community supervision if in the judge’s opinion the best interest of
        society and the defendant will be served. The judge may not dismiss the
        proceedings and discharge a defendant charged with an offense requiring
        the defendant to register under Chapter 62. Except as provided by
        Section 12.42(g), Penal Code, 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.
        For any defendant who receives a dismissal and discharge under this
        section:

        (1)     upon conviction of a subsequent offense, the fact that the
                defendant had previously received community supervision with a
                deferred adjudication of guilt shall be admissible before the court or
                jury to be considered on the issue of penalty;

        (2)     if the defendant is an applicant for a license or is a licensee under
                Chapter 42, Human Resources Code, the Department of Family
                and Protective Services may consider the fact that the defendant
                previously has received community supervision with a deferred
                adjudication of guilt under this section in issuing, renewing,
                denying, or revoking a license under that chapter; and

        (3)     if the defendant is a person who has applied for registration to
                provide mental health or medical services for the rehabilitation of
                sex offenders, the Council on Sex Offender Treatment may
                consider the fact that the defendant has received community
                supervision under this section in issuing, renewing, denying, or
                revoking a license or registration issued by that council.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(c) (West Supp. 2014).1 On its face, Section

5 of Article 42.12 does not specifically refer to “setting aside” a deferred adjudication

order, nor does it incorporate any of the specific words referred to by Subsection C.

The issue becomes more focused: whether the early release, dismissal, and discharge

of Section 5 serves to “otherwise . . . set aside” Jones’s deferred adjudication such that

it no longer falls within the definition of “convicted.”


        1
           See State v. Juvrud, 187 S.W.3d 492, 496 (Tex. Crim. App. 2006) (recognizing that Section 20
of Article 42.12 applies only to the discharge or reduction of post-conviction community supervision, not to
the early termination of deferred adjudication, and that Section 5 controls deferred adjudication
community supervision).

                                                     5
                                        Analysis


      TDPS maintains that this Early Release Order is of no consequence to the TDPS

application of the Act; “it does not amount to a set aside as contemplated by the Act or

the Texas Code of Criminal Procedure and it would therefore be contrary to the

language of the Act and the legislative intent underlying it to issue the license on this

basis.” TDPS contends that the authority to “set aside” applies only to adjudications of

guilt—not deferred adjudications—and is provided exclusively in Section 20 of Article

42.12 of the Texas Code of Criminal Procedure. In contrast, Section 5 of Article 42.12

governs deferred adjudication, and Section 5 makes no specific provision for “setting

aside” when a judge discharges someone from deferred adjudication. We must decide

whether Section 5’s early “dismissal and discharge” of a deferred adjudication order

falls within the adjudications excepted by Section 411.171 as not constituting

convictions for the purposes of the Act. Put another way, we must decide whether a

Section 5 early “dismissal and discharge” of a deferred adjudication renders the

deferred adjudication order “otherwise vacated, set aside, annulled, invalidated, voided,

or sealed under any state or federal law.” See TEX. GOV’T CODE ANN. § 411.171(4)(C).


      We begin by considering the Texas Supreme Court’s opinion in Tune v. Tex.

Dep’t of Pub. Safety, 23 S.W.3d 358 (Tex. 2000). In Tune, the Texas Supreme Court

specifically addressed the meaning of the term “convicted” under the Act. See id. at

360. We note at the outset that the definition of “convicted” addressed in Tune was very

different than the one at issue now. In 1972, Tune pleaded guilty to felony charges and

was sentenced to two years’ probation. See id. After he completed one year and five

months of his probation, the trial court issued an order setting aside his conviction,

                                            6
dismissing the indictment, and discharging him from probation.                     Id.   In 1996, Tune

applied for a concealed handgun license but was denied said license because of his

felony conviction. Id.


        The version of Section 411.171 in effect at the time when Tune applied for a

concealed handgun license defined “convicted” as follows:


        [A]n adjudication of guilt or an order of deferred adjudication entered
        against a person by a court of competent jurisdiction whether or not:

        (A)     the imposition of the sentence is subsequently probated and the
                person is discharged from community supervision; or

        (B)     the person is pardoned for the offense, unless the pardon is
                expressly granted for subsequent proof of innocence.

See former TEX. REV. CIV. STAT. ANN. art. 4413(29ee), recodified by Act of May 8, 1997,

75th Leg., R.S., ch. 165, § 10.01(a), 1997 Tex. Gen. Laws 397–98, amended by Act of

April 23, 1999, 76th Leg., R.S., ch. 62, § 9.01(a), 1999 Tex. Gen. Laws 314. The Act’s

definition of “convicted” was amended in 1999 to specifically exclude from the definition

adjudications or deferred adjudications that had been expunged or pardoned, so the

version in effect at the time Tune was decided had already altered the language

analyzed in Tune. Over the intervening years, Section 411.171 would undergo several

more amendments consistent with that trend of expanding exceptions to the term

“convicted.”2



        2
          The definition of “convicted” in Section 411.171(4) was amended in 1999 to delete the language
regarding a pardoned offense in Subsection (B) of the version addressed in Tune and added that “[t]he
term does not include an adjudication of guilt or an order of deferred adjudication that has been
subsequently: (a) expunged; or (b) pardoned under the authority of a state or federal official.” See Act of
April 23, 1999, 76th Leg., R.S., ch. 62, § 9.01(a), 1999 Tex. Gen. Laws 314. In 2005, the exception of
Section 411.1711 was added. See Act of May 25, 2005, 79th Leg., R.S., ch. 1084 § 1, 2005 Tex. Gen.
Laws 3575. In 2007, the Legislature amended Section 411.171(4) to include subsections defining

                                                    7
        Tune relied on the language in the predecessor to Section 20 of Article 42.12,

governing the discharge of a defendant who successfully completed probation following

a conviction “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 proof of his said conviction or plea of guilty shall be made known to

the court should the defendant again be convicted of any criminal offense.” See Tune,

23 S.W.3d at 363. His reliance was to no avail, however, in light of the Texas Supreme

Court’s conclusion that Section 411.171 was clear and unambiguous in its definition of

“convicted” “whether or not the imposition of the sentence is subsequently probated and

the person is discharged from community supervision.”3                     See id.     Simply put, the

definition made it clear that, regardless of a subsequent discharge, a conviction meant

the defendant was a “convicted” applicant for the purposes of the Act. See id. at 363–

64; see also Tex. Dep’t of Pub. Safety v. Loeb, 149 S.W.3d 741, 744 (Tex. App.—Austin

2004, no pet.) (deciding, under version of definition that excepted from definition those

adjudications that had been expunged but did not yet except those that had been set

aside, that an adjudication that had been set aside was not the equivalent of an

expungement and did not fall within exception to definition and that applicant was,

therefore, disqualified under the statute).

_________________________
“federal judge” and “state judge.” See Act of May 17, 2007, 80th Leg., R.S., ch. 594, § 8, 2007 Tex. Gen.
Laws 1150. In 2009, the definition was again amended to include the entirety of Subsection C, excepting
adjudications that are “otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any
state or federal law,” the language at issue in the instant case. See Act of June 1, 2009, 81st Leg., R.S.,
ch. 1146, § 6.06, 2009 Tex. Gen. Laws 3624.
        3
          We recognize that the current version of Section 411.171 includes the “whether or not” clause
as well: “whether or not the imposition of the sentence is subsequently probated and the person is
discharged from community supervision.” We view this clause as inapplicable to the instant case in that,
here, unlike in Tune, sentence was never imposed and, therefore, could not be “subsequently probated.”
Likewise, neither party has addressed the clause specifically. That said, we read this “whether or not”
clause as contemplating circumstances not before us in the instant case.

                                                    8
       The Legislature, added the Tune court, was certainly able to provide that general

penalties may be lifted when a defendant is discharged but leave in place certain,

specific restrictions on those convicted of a felony, noting that, “for obvious reasons, the

Legislature may wish to keep concealed handguns out of the hands of persons who

have been convicted of a felony, even if those persons satisfactorily complete

community supervision.” See Tune, 23 S.W.3d at 363–64.


       In Tune, the Texas Supreme Court specifically addressed a conviction that had

been “set aside.” See id. at 360, 363; see also Loeb, 149 S.W.3d at 744. So, it would

seem that a different result than that in Tune may prevail under the definition of

“convicted” now in effect, which specifically excepts final convictions that have been,

inter alia, “set aside.” See TEX. GOV’T CODE ANN. § 411.171(4)(C).


       Still left to decide, however, is whether the current, more expansive exceptions to

the definition of “convicted” go so far as to encompass the deferred adjudication in the

instant case, governed by Section 5 rather than Section 20 of Article 42.12 of the Texas

Code of Criminal Procedure.      Now, we must look at the boundaries of this newer,

broader set of exceptions to the definition in Section 411.171 of the Texas Government

Code. It appears this is the first case to call for such an analysis since the 2009

amendments to Section 411.171, which amended the section to include the entirety of

the broadest category of exceptions: Subsection C.


       As we have noted, after having been amended at least four times since the

definition of “convicted” analyzed in Tune, the current definition of “convicted” seems to

have included more expansive terms to except certain adjudications and deferred


                                             9
adjudications from within the meaning of “convicted.”          The exceptions are now

categorized into three categories, the third category, outlined in Subsection C,

seemingly very general. By its plain language, Subsection C of Section 411.171 now

uses rather broad terms to except certain adjudications and deferred adjudications from

the definition of “convicted” and seems to contemplate that an order of deferred

adjudication may be “set aside”: again, “[t]he term [“convicted”] does not include an

adjudication of guilt or an order of deferred adjudication that has been subsequently . . .

otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or

federal law.” 411.171(4)(C) (emphasis added).


       Here, the trial court’s Early Release Order “set aside” Jones’s deferred

adjudication, dismissed the charges against Jones, and “released [him] from all

penalties and disabilities resulting from the deferred sentence in this cause.” Although

TDPS maintains that Section 5 of Article 42.12 makes no specific provision for “setting

aside” an order of deferred adjudication—Section 5 does not include that specific

term—the practical effect of the trial court’s Early Release Order serves to “otherwise

vacate[], set aside, annul[], invalidate[], [or] void[]” the 2010 order placing Jones on

deferred adjudication. We read Subsection C as broad enough to include the trial

court’s Early Release Order and reject TDPS’s narrow construction of that provision.

Our reading is consistent with not only the relatively broad list of those rather general

types of adjudications excepted, but also because of the Legislature’s use of the term

“otherwise” which suggests Subsection C is an even broader exception than the list

itself would indicate. The applicable definition of “otherwise” used in this sense is “in a

different way or manner”; “in different circumstances”; “in other respects.” MERRIAM-


                                            10
WEBSTER’S COLLEGIATE DICTIONARY 879 (11th ed. 2003). In light of the inclusion of

“otherwise,” we do not read Subsection C to be strictly limited to events or actions

specifically falling within the listed descriptors. Further, we add that those listed events

or actions in Subsection C are, in and of themselves, rather broad in scope, capable of

encompassing a variety of circumstances, including the trial court’s Early Release Order

at issue. We overrule TDPS’s sole point of error.


                                        Conclusion


       Having overruled TDPS’s sole point of error, we affirm the trial court’s judgment.

See TEX. R. APP. P. 43.2(a).




                                                 Mackey K. Hancock
                                                     Justice




                                            11
