Can someone with a moral-turpitude misdemeanor become a bail bond surety again after judicial clemency in Texas?

Plain-English summary

Timothy Mason, the Andrews County Attorney, asked the Attorney General about a person who wanted to act as a bail bond surety despite an old criminal conviction. Texas law bars anyone "finally convicted of ... a misdemeanor involving moral turpitude" from acting as a surety on a bail bond. The twist was that this person had received "judicial clemency" for the conviction. Mason asked whether that grant of clemency restores the person's eligibility to be a surety.

The answer turned on what "judicial clemency" does. Article 42.12, section 20(a) of the Code of Criminal Procedure deals with ending a defendant's community supervision (probation). The Court of Criminal Appeals, in a case called Cuellar, read that provision to create two different kinds of discharge. The ordinary kind simply graduates a defendant off probation and leaves the conviction's legal effect intact. The second kind is judicial clemency, which is entirely within the trial judge's discretion. When a judge grants it, the Court said, "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."

Because the Court of Criminal Appeals is the highest authority on Texas criminal law and had definitively construed this provision, the AG treated himself as bound by Cuellar. He then reasoned that the bar on serving as a bail bond surety is exactly the kind of "penalty or disability resulting from the conviction" that judicial clemency lifts. No statute keeps a person from being a surety once judicial clemency has erased the conviction, and where the Legislature wanted a conviction to disqualify someone even after clemency (as with certain handgun and law-enforcement licenses), it said so expressly. Section 20 has its own listed exceptions, and the bail-bond-surety bar is not among them.

So the AG concluded that a person convicted of a moral-turpitude misdemeanor who received judicial clemency under section 20(a) would likely, if otherwise qualified, be eligible to act as a bail bond surety. He flagged that this was the likely result rather than a certainty, noting that a dissenting judge in Cuellar had read the surety bar as a lifetime one.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

County Attorney Mason and Andrews County (as the opinion described it): The opinion concluded that, based on the Court of Criminal Appeals' decision in Cuellar, an otherwise-qualified person who received judicial clemency for a moral-turpitude misdemeanor would likely be eligible to act as a bail bond surety. It noted Andrews County is not subject to the separate licensing scheme in chapter 1704 of the Occupations Code.

People with old convictions seeking to be sureties (as the opinion described it): The opinion described judicial clemency, the discretionary kind of discharge a judge may grant under section 20(a), as wiping away the conviction and releasing the person from the penalties and disabilities resulting from it, including the surety disqualification.

Bail bond agents and county officials administering the bar (as the opinion described it): The opinion described the surety disqualification as a penalty or disability that judicial clemency removes, distinguishing it from licensing schemes (handgun and law-enforcement licenses) where the Legislature kept a conviction disqualifying even after clemency.

Judges (as the opinion described it): The opinion described the grant of judicial clemency under section 20(a) as a matter within the trial court's sole discretion.

Common questions

What is 'judicial clemency' in Texas?
The AG explained, citing the Court of Criminal Appeals' Cuellar decision, that it is a discretionary kind of discharge from community supervision in which the judge sets aside the verdict or plea, dismisses the charge, and the conviction is "wiped away," releasing the person from the penalties and disabilities that resulted from it.

Does a moral-turpitude misdemeanor permanently bar someone from being a bail bond surety?
Not necessarily. The AG concluded that if a judge granted judicial clemency for the conviction, an otherwise-qualified person would likely be eligible to act as a surety, because the surety bar is a penalty or disability that clemency lifts.

How is judicial clemency different from just finishing probation?
The AG explained that ordinary discharge graduates a defendant off probation but leaves the conviction's legal effect intact, while judicial clemency goes further and erases the conviction. Only the second restores eligibility.

Does clemency erase a conviction for every purpose?
No. The AG noted that some statutes keep a conviction disqualifying even after judicial clemency, such as certain concealed-handgun and law-enforcement licenses, because those laws define "convicted" specifically. The bail-bond-surety bar, however, is not written that way.

Was the AG's conclusion certain?
The AG framed it as the likely result based on Cuellar, and noted a dissenting judge in that case had read the surety bar as a lifetime disqualification.

Background and statutory framework

The Code of Criminal Procedure bars a person from acting "as a surety on a bail bond if the person has been finally convicted of ... a misdemeanor involving moral turpitude" (Tex. Code Crim. Proc. Ann. art. 17.10(c)(1) (West Supp. 2014)). Article 42.12, section 20(a) governs the reduction or termination of community supervision, and provides that on satisfactory completion the judge shall discharge the defendant, may set aside the verdict or permit withdrawal of the plea, and shall dismiss the charge, after which the defendant "shall thereafter be released from all penalties and disabilities resulting from the offense," subject to listed exceptions (id. art. 42.12, § 20(a) (West Supp. 2014); see Rodriguez v. State, 939 S.W.2d 211 (Tex. App.-Austin 1997, no pet.) (probation and community supervision used interchangeably)).

The Court of Criminal Appeals construed section 20 to create two kinds of discharge: an ordinary discharge that leaves the conviction intact, and "judicial clemency," within the trial court's sole discretion, that wipes the conviction away (Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002)). Because the Court of Criminal Appeals is the highest tribunal on Texas criminal law and had definitively construed the provision, the AG treated himself as bound by that reading (Southwick v. State, 701 S.W.2d 927 (Tex. App.-Houston [1st Dist.] 1985, no pet.); Tex. Att'y Gen. Op. No. GA-0630 (2008)).

Section 20 lists exceptions (for subsequent convictions, specified categories of crime, and certain child-care matters) (Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a)(1)-(b) (West Supp. 2014)). Provisions outside section 20 can keep a conviction disqualifying even after clemency, such as the Concealed Handgun Act's definition of "convicted" (Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358 (Tex. 2000)) and certain law-enforcement license bars (Tex. Occ. Code Ann. § 1701.312(b)(2) (West 2012)). Applying the canon that stated statutory exceptions imply no others (Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex. 1978)), the AG concluded the surety disqualification is a penalty or disability that judicial clemency removes. A separate licensing scheme in chapter 1704 of the Occupations Code, not applicable to Andrews County, contains a similar disqualification (Tex. Occ. Code Ann. §§ 1704.002, .153 (West 2012)).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 17.10(c)(1) (West Supp. 2014) (bail bond surety disqualification)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a) (West Supp. 2014) (discharge from community supervision; release from penalties and disabilities)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a)(1)-(b) (West Supp. 2014) (exceptions)
• Tex. Occ. Code Ann. §§ 1704.002, .153 (West 2012) (Occupations Code bail bond licensing disqualification)
• Tex. Occ. Code Ann. § 1701.312(b)(2) (West 2012) (law-enforcement license disqualification despite dismissal)

Cases:

• Cuellar v. State, 70 S.W.3d 815, 818 (Tex. Crim. App. 2002)
• Rodriguez v. State, 939 S.W.2d 211, 220 (Tex. App.-Austin 1997, no pet.)
• Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.-Houston [1st Dist.] 1985, no pet.)
• Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358, 360 (Tex. 2000)
• Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978)

Prior Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-0630 (2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1087
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1087.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 12, 2014

The Honorable Timothy J. Mason Opinion No. GA-1087
Andrews County Attorney
121 Northwest Avenue A Re: Whether a person who was convicted of a
Andrews, Texas 79714 misdemeanor involving moral turpitude but
who received "judicial clemency" is eligible to
act as a bail bond surety (RQ-1200-GA)

Dear Mr. Mason:

You ask whether a person who was convicted of a misdemeanor involving moral turpitude but who received "judicial clemency" under article 42.12, section 20(a) of the Code of Criminal Procedure is eligible to act as a bail bond surety.[1] The Code of Criminal Procedure prohibits a person from acting "as a surety on a bail bond if the person has been finally convicted of ... a misdemeanor involving moral turpitude." TEX. CODE CRIM. PROC. ANN. art. 17.10(c)(1) (West Supp. 2014).[2] You ask whether a grant of "judicial clemency" for such a misdemeanor conviction restores the person's eligibility to act as a surety. Request Letter at 1.

Article 42.12, section 20(a) of the Code of Criminal Procedure governs the reduction or termination of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a) (West 2013); see also Rodriguez v. State, 939 S.W.2d 211, 220 (Tex. App.-Austin 1997, no pet.) (observing that the terms "community supervision" and "probation" "generally mean the same thing and are used interchangeably"). As pertinent here, section 20(a) states:

Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision the judge ... 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 the defendant's 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 the defendant has been convicted or to which the defendant has pleaded guilty, except [for certain crimes and circumstances].

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a) (West Supp. 2014).

The Court of Criminal Appeals has interpreted this provision to provide for two different types of discharge from community supervision. Cuellar v. State, 70 S.W.3d 815, 818 (Tex. Crim. App. 2002). The most common type of discharge under section 20 "graduates" the defendant from community supervision but does not alter the usual legal significance of the defendant's conviction. Id.

The Court of Criminal Appeals describes the second type of discharge under section 20 as a form of "judicial clemency," a matter within the trial court's sole discretion. Id. at 819. According to the Court, "[i]f 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." Id. (citation omitted). Because an attorney general opinion advises about "the current status of the law," when the Court of Criminal Appeals has definitively construed a provision of the Code of Criminal Procedure, we are bound by that interpretation. See Tex. Att'y Gen. Op. No. GA-0630 (2008) at 4 (stating the function of attorney general opinions); Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.-Houston [1st Dist.] 1985, no pet.) ("The Court of Criminal Appeals is the highest tribunal on matters pertaining to the enforcement of criminal laws, and when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation.").

Thus, based on Cuellar, if a judge grants judicial clemency under section 20, the conviction "disappears" unless an exception applies. Cuellar, 70 S.W.3d at 820. Section 20 contains exceptions for subsequent convictions, convictions for specified categories of crime, and convictions of applicants or licensees concerning child-care facilities. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20(a)(1)-(b) (West Supp. 2014). Provisions outside of section 20 may determine whether judicial clemency will release a person from particular penalties or disabilities that result from conviction of a crime. See Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358, 360 (Tex. 2000) (determining that the Concealed Handgun Act's specific definition of the word "convicted" means that a person who has been convicted of certain crimes is disqualified from licensure even if the person has received judicial clemency); see also TEX. OCC. CODE ANN. § 1701.312(b)(2) (West 2012) (providing that a person convicted of a felony is disqualified from certain law enforcement licenses "regardless of whether ... the accusation, complaint, information, or indictment against the person is dismissed and the person is released from all penalties and disabilities resulting from the offense"). No statute prohibits a person from acting as a bail bond surety because of a criminal conviction when the person has received judicial clemency for the conviction.

"When specific exclusions or exceptions to a statute are stated by the Legislature, the intent is usually clear that no others shall apply." Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978). A court would likely determine that the statutory disqualification of persons convicted of a crime from acting as a bail bond surety is a penalty or disability resulting from the conviction as contemplated by article 42.12, section 20 of the Code of Criminal Procedure. Based on Cuellar, a court would likely conclude that a person who was convicted of a misdemeanor involving moral turpitude but who received judicial clemency under article 42.12, section 20(a) of the Code of Criminal Procedure, if otherwise qualified, is eligible to act as a bail bond surety.[3]

SUMMARY

A court would likely conclude that a person who was convicted of a misdemeanor involving moral turpitude but who received judicial clemency under article 42.12, section 20(a) of the Code of Criminal Procedure, if otherwise qualified, is eligible to act as a bail bond surety.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Timothy J. Mason, Andrews Cnty. Att'y, to Office of the Att'y Gen. (May 12, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Chapter 1704 of the Occupations Code, applicable in certain counties, contains a similar disqualification. See TEX. OCC. CODE ANN. §§ 1704.002 (West 2012) (applicability of the chapter), .153 (stating that a "person is not eligible for a license under this chapter if, after August 27, 1973, the person commits and is finally convicted of a misdemeanor involving moral turpitude or a felony"). You state that Andrews County is not subject to chapter 1704 of the Occupations Code. Request Letter at 1. You further state that you believe that article 17.10 of the Code of Criminal Procedure disqualifies a particular surety because of a "30+ year old theft conviction" unless judicial clemency has restored eligibility. Id. Article 17.10(c)(1) was enacted in 2011 and applies only to offenses committed after the September 1, 2011 effective date. See Act of May 25, 2011, 82nd Leg., R.S., ch. 769, §§ 2, 4, 5, 2011 Tex. Gen. Laws 1795, 1795.

[3] But see Cuellar, 70 S.W.3d at 834 (Keasler, J., dissenting) (stating that a person convicted of a misdemeanor of moral turpitude or a felony is barred for life from being a bail bond surety).