Untitled Texas Attorney General Opinion
GA-1087
Tex. Att'y Gen.Jul 2, 2014Background
- Andrews County Attorney asked whether a person convicted of a misdemeanor involving moral turpitude who later received "judicial clemency" under Tex. Code Crim. Proc. art. 42.12 § 20(a) may act as a bail bond surety.
- Article 17.10(c)(1) of the Code of Criminal Procedure disqualifies persons finally convicted of a misdemeanor involving moral turpitude from acting as sureties on bail bonds.
- Article 42.12 § 20(a) allows a judge, after satisfactory completion of community supervision, to discharge the defendant, dismiss the charge, set aside the verdict or permit withdrawal of plea, and release the person "from all penalties and disabilities" resulting from the conviction (with statutory exceptions).
- The Court of Criminal Appeals in Cuellar v. State characterized one form of § 20(a) relief as "judicial clemency" that effectively wipes away the conviction and its resulting disabilities when granted by the trial court.
- Some statutes define "convicted" for licensing or other purposes to exclude persons even after judicial clemency; however, no statute expressly excepts bail-bond surety qualifications from § 20(a) clemency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 20(a) judicial clemency restores eligibility to act as a bail bond surety after a misdemeanor involving moral turpitude conviction | Judicial clemency under § 20(a) removes convictions and attendant penalties/disabilities, so the person is no longer disqualified | The statutory disqualification in art. 17.10(c)(1) bars anyone finally convicted of such a misdemeanor; clemency should not restore eligibility unless statute expressly allows | A court would likely conclude § 20(a) judicial clemency removes the conviction and its disabilities, so an otherwise qualified person is eligible to be a surety |
Key Cases Cited
- Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) (interpreting art. 42.12 § 20(a) to permit judicial clemency that "wipes away" a conviction and attendant disabilities)
- Tune v. Texas Dep't of Pub. Safety, 23 S.W.3d 358 (Tex. 2000) (a statute's specific definition of "convicted" can preserve disqualification despite judicial clemency)
- Rodriguez v. State, 939 S.W.2d 211 (Tex. App.–Austin 1997) (discussion that "community supervision" and "probation" are used interchangeably)
- Southwick v. State, 701 S.W.2d 927 (Tex. App.–Houston [1st Dist.] 1985) (deference to the Court of Criminal Appeals on criminal-law interpretations)
- Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex. 1978) (when legislature lists specific exceptions, courts ordinarily will not read others in)