Can I still get a pardon after my conviction was set aside at the end of probation in Texas?

Plain-English summary

Texas law lets a judge, at the end of probation, wipe much of a conviction off the books. Under section 20 of article 42.12 of the Code of Criminal Procedure, when a person finishes "regular" or "shock" community supervision, the judge may set aside the verdict (or let the person withdraw a guilty plea), dismiss the charge, and release the person "from all penalties and disabilities" of the offense. Then-Governor George W. Bush asked the Attorney General whether someone who got that relief is still eligible for a governor's pardon, and what to do about a court record too ambiguous to tell what the court actually did.

On the first question, the Attorney General concluded the person is not eligible for a pardon, at least for a pardon not based on a finding of actual innocence (the office expressly limited its answer to that kind). The reasoning, drawn from the office's earlier Opinion DM-349, was that a governor's pardon of this kind "may reach only the punishments, penalties, disabilities, and disqualifications that the law would attach to the pardoned conviction." Section 20 has already stripped all of those away. So there is nothing left for a pardon to act on. Section 20 does keep two uses of the old record: proof of the conviction must be shown to a judge if the person is convicted again, and the conviction may be considered in licensing a child-care or child-placing agency under Human Resources Code chapter 42. But the office (again following DM-349) said those are not "continuing penalties or disabilities." They are limited grants of authority to consider the fact of prior guilt when it bears on the person's character or on the punishment for a later crime, and a pardon does not reach those either, because a pardon "neither affects the penal consequences of any subsequent offenses nor restores a person's reputation or good character."

On the second question, the Governor's office had a document captioned "Certification of Proceedings" with the notation "Probation Set Aside and Dismissed on 3-15-84," which was ambiguous about whether the court had actually granted section 20(a) relief. The office suspected this was not the court's real disposition order and said the applicant should be asked to produce the actual order. If the certification was the written entry and a clerical error made it fail to reflect what the court actually did, the office concluded the court keeps the inherent power to enter a corrected order "nunc pro tunc" (a correction that takes effect as of the original date).

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion construed section 20 of article 42.12 of the Code of Criminal Procedure (and compared it to the deferred-adjudication provisions in section 5) as those statutes stood in 1996, along with the governor's pardon power as the office had analyzed it in Opinion DM-349 (1995). Article 42.12 has been amended and reorganized many times since, so the section numbers and the precise relief available may differ today. Read this page for the office's 1996 reasoning, and verify the current statutes and clemency rules before relying on any specific provision.

What the opinion meant at the time

For people who finished probation and had the conviction set aside: The opinion meant the section 20 order had already released them from all penalties and disabilities of the offense, so a governor's pardon not based on actual innocence had nothing left to give them. The office was explicit that it was addressing only pardons not grounded in a finding of actual innocence.

For the Board of Pardons and Paroles and the Governor's office: The opinion meant that, faced with an applicant whose conviction had been set aside and dismissed under section 20, there was no pardon power left to exercise over that conviction. Where the court record was ambiguous, the described course was to obtain the court's actual disposition order rather than treat an ambiguous "Certification of Proceedings" as the final order.

For courts and district clerks: The opinion meant a court retained inherent authority to correct, by an order nunc pro tunc, a written disposition entry that, through clerical error, did not reflect the disposition the court actually rendered.

For lawyers: The office grounded the pardon analysis in its earlier Opinion DM-349 (1995) and in Shepherd v. Trevino (5th Cir.), distinguishing penalties and disabilities (which a pardon reaches) from limited authority to consider prior guilt relevant to character or to a subsequent offense's punishment (which it does not). On the procedural point, it relied on the courts' inherent nunc pro tunc power, citing Johnston v. State and Ex parte Honnen.

Common questions

If my conviction was set aside at the end of probation, am I eligible for a Texas governor's pardon?
Under this opinion, no, for a pardon not based on actual innocence. The office reasoned that section 20 of article 42.12 had already released the person from all penalties and disabilities of the offense, so there was nothing left for that kind of pardon to reach.

What about a pardon based on actual innocence?
The opinion expressly did not decide that. A footnote stated the office was assuming the inquiry was about a pardon "not based on a finding of actual innocence" and limited the opinion accordingly. A pardon grounded in actual innocence raises different questions the office did not address here.

Does the set-aside completely erase the conviction?
Not entirely. Section 20(a) released the person from penalties and disabilities, but it kept two uses of the record: the conviction must be made known to a judge if the person is convicted again, and the Department of Human Services could consider it in issuing, renewing, denying, or revoking a child-care or child-placing license under Human Resources Code chapter 42. The office (following DM-349) called these limited grants of authority to consider prior guilt, not continuing penalties.

The court's order is ambiguous about what actually happened. Can it be fixed?
The office said yes. A court has the inherent power to enter a corrected order nunc pro tunc when a clerical error made the written entry fail to reflect the disposition the court actually rendered. The pardon applicant should be asked to provide the court's actual order.

Does the same logic apply to deferred adjudication?
The office compared section 20 to the deferred-adjudication provisions in section 5(c), and its earlier Opinion DM-349 reached a parallel conclusion: a dismissal and discharge is not a conviction for disqualification purposes, but the prior guilt can still be considered in a later prosecution and in certain licensing decisions, and a pardon cannot reach those uses.

Background and statutory framework

Section 20 of article 42.12 of the Code of Criminal Procedure governs what happens at the successful end of community supervision. After the defendant satisfactorily completes the supervision period, the judge discharges the defendant, and "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 charging instrument. The defendant is then "released from all penalties and disabilities resulting from the offense," with two exceptions written into subsection (a): proof of the conviction is shown to a judge if the person is convicted again, and the conviction may be considered by the Department of Human Services in licensing a child-care or child-placing agency under Human Resources Code chapter 42. Section 20(b) makes section 20 unavailable for intoxication offenses under Penal Code sections 49.04-49.08 and for state jail felonies. The relief addressed in this opinion applies to "regular" community supervision under sections 3 or 4 and "shock" community supervision under section 6.

The pardon analysis came from the office's earlier Opinion DM-349 (1995), which had read the analogous deferred-adjudication provision in section 5(c). DM-349 reasoned that the subsequent-prosecution and licensing provisions are not "continuing penalties or disabilities" but "limited grants of authority to consider the fact of the defendant's prior guilt when that guilt is relevant to the defendant's character." It then explained that a governor's pardon, when not based on a finding of actual innocence, "may reach only the punishments, penalties, disabilities, and disqualifications that the law would attach to the pardoned conviction" and "neither affects the penal consequences of any subsequent offenses nor restores a person's reputation or good character." Because section 20 had already removed the penalties and disabilities, and because a pardon could not reach the retained character- and subsequent-offense-related uses, the office concluded there was no pardonable conviction left.

The factual occasion was a specific applicant: a person convicted of delivery of a controlled substance who was discharged from "shock" probation in 1984, whose file contained only a "Certification of Proceedings" from Criminal District Court No. 4 of Tarrant County reading "Probation Set Aside and Dismissed on 3-15-84." Reading that notation, the office doubted it was the court's actual disposition order (it found no precedent for a proceeding that both "sets aside" and "dismisses" an order of probation) and explained that the missing real order could be produced, or, if a clerical error had garbled the entry, corrected nunc pro tunc. For the inherent power to make such a correction, the office cited Johnston v. State and Ex parte Honnen, both decisions of the Texas Court of Criminal Appeals.

Citations

Statutory provisions discussed:

• Code of Criminal Procedure art. 42.12, § 20, including subsection (a) (discharge, set-aside, dismissal, release from penalties and disabilities, and the two retained uses) and subsection (b) (offenses excluded from section 20)
• Code of Criminal Procedure art. 42.12, § 5(c) (deferred adjudication; dismissal and discharge), and §§ 3, 4 ("regular" community supervision) and 6 ("shock" community supervision)
• Penal Code §§ 49.04-49.08 (intoxication offenses)
• Human Resources Code ch. 42 (child-care and child-placing agency licensing)

Attorney General opinion relied upon:

• Attorney General Opinion DM-349 (1995)

Cases discussed:

• Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979)
• Johnston v. State, 323 S.W.2d 449 (Tex. Crim. App. 1959)
• Ex parte Honnen, 228 S.W.2d 864 (Tex. Crim. App. 1950)
• Cases surveyed in footnote 3 on setting aside or dismissing probation orders: Atchison v. State, 716 S.W.2d 185 (Tex. App.-Fort Worth 1986, no writ); State v. Curry, 599 S.W.2d 630 (Tex. Crim. App. 1980); Walker v. State, 562 S.W.2d 864 (Tex. Crim. App. [Panel Op.] 1978); Friedl v. State, 773 S.W.2d 72 (Tex. App.-Houston [1st Dist.] 1989, no writ); Stovall v. State, 683 S.W.2d 891 (Tex. App.-Fort Worth 1985, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0393
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0393.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 14, 1996

The Honorable George W. Bush
Governor of Texas
P.O. Box 12428
Austin, Texas 78711

Opinion No. DM-393

Re: Whether a pardonable conviction 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 v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 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 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. [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).

Limiting 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[1] after the judge who discharged the person pursuant to section 20 also granted the relief that is emphasized 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 offense or crime of which he has been convicted or to which he has pleaded guilty." Code Crim. Proc. art. 42.12, § 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)[2] 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 license or registration to provide rehabilitative mental health or medical services to sex offenders.

Attorney General Opinion DM-349 (1995) at 3 (quoting Code Crim. Proc. art. 42.12, § 5(c)(1)) (citations omitted). We reasoned that the provisions in section 5(c) relating to subsequent prosecutions and licensing matters do not "constitute continuing penalties or disabilities" but rather "are merely limited 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 finding that the defendant is actually innocent of the offense, "may reach only the punishments, penalties, disabilities, and disqualifications that the law would attach to the pardoned conviction" and that such a pardon "neither affects 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 county and which contains after 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 instrument was "Dismissed," that is, that the court granted the relief authorized in section 20(a). The document contains no further 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 finally disposed of the prosecution. Based on that assumption, you ask: "[I]f 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 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 final 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 cannot 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-described "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 correctly reflect the actual disposition rendered by the court, then we believe the court would have the inherent power to enter an order nunc pro tunc correcting the disposition entry. See, e.g., Johnston v. State, 323 S.W.2d 449, 451 (Tex. Crim. App. 1959); Ex parte Honnen, 228 S.W.2d 864, 866 (Tex. Crim. App. 1950).

SUMMARY

A person who has been on "regular" or "shock" community supervision is not eligible for a governor's pardon after 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 court has the inherent power to enter an order nunc pro tunc correcting the written entry of the court's disposition of a case if by clerical error the entry does not correctly reflect the actual disposition rendered by the court.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General

[1] We assume your inquiry is about a pardon that is not based on a finding of actual innocence, and we limit this opinion accordingly.

[2] Section 5 provides for deferred adjudication community supervision.

[3] In a search of a computer data base of Texas case law we found several reported cases in which the court set aside an order revoking probation. See, e.g., Carr v. State, 143 S.W.2d 51 (Tex. App.-Houston [1st Dist.] 1987, no writ); Atchison v. State, 716 S.W.2d 185 (Tex. App.-Fort Worth 1986, no writ). In other cases the court set aside for voidness an order granting probation. See, e.g., State v. Curry, 599 S.W.2d 630 (Tex. Crim. App. 1980); Walker v. State, 562 S.W.2d 864 (Tex. Crim. App. [Panel Op.] 1978). In still other cases the court dismissed a motion to revoke probation. See, e.g., Friedl v. State, 773 S.W.2d 72 (Tex. App.-Houston [1st Dist.] 1989, no writ); Stovall v. State, 683 S.W.2d 891 (Tex. App.-Fort Worth 1985, writ ref'd). We found no case, however, where the court both set aside and dismissed an order of probation.