In Texas, most criminal attorneys will tell you that any hope of clearing a charge from your criminal record will depend upon the fashion your case was resolved. The rule of thumb is nondisclosures require deferred adjudication and expunctions require either an acquittal or a dismissal. This information gives little consolation to the individual who was not advised about or did not fully comprehend the consequences of his guilty plea when it was made. In Texas, the reality is harsh–a criminal conviction is for life.

This is what I advise my clients, because in practice, this is what should be expected. However, this is also an area where the practice and the law aren’t exactly in harmony. Under Article 42.12 Section 20 of Tex. Code. Crim. Proc. the law provides for “judicial clemency” for people placed on “straight probation” (probation which comes with a conviction). This section explains that at any time after completion of one-third of a probation period the judge may do any of the following:

• Reduce the probation
• Terminate the probation
• Set aside the verdict
• Allow the defendant to withdraw his plea
• Dismiss the complaint, information or indictment
• Released from all penalties and disabilities resulting from the conviction (such as the right to vote, the right to serve on a jury, and in some cases gun ownership).

By using the phrase “the judge may,” the legislature has given the judge complete discretion on the issue of judicial clemency. What this means is that any person seeking judicial clemency will have to overcome two distinctly probable inclinations of the judge: (1) the desire to preserve the finality and status quo of the conviction, and (2) the skepticism that comes with requesting relief through an uncommon and not well known legal device. Predicting whether or not a judge will grant clemency is similar to predicting a winning race horse–but for some, the juice may be worth the squeeze.

Those considering a motion for judicial clemency should beware of several caveats. First, a person convicted of DWI or a sex offense is ineligible for judicial clemency (one of a number of ways DWI offenders are treated like sex offenders). Second, judicial clemency is not the same as an expunction–it will not erase the existence of an arrest and subsequent court case. Third, agencies that track criminal records will likely continue to report a conviction until someone affirmatively requests them to modify their data.