THE STATE OF TEXAS v. LAKESIA KEYON BRENT, Appellee
NO. PD-0020-21
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
October 20, 2021
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY
KEEL, J.,
O P I N I O N
We granted review to decide whether a trial court has never-ending jurisdiction to grant “judicial clemency” after discharging a defendant from community supervision. We answer that question in the negative.
I. Background
On March 4, 2016, a jury convicted Appellee of Class B misdemeanor theft, and the trial court assessed her punishment at six months in jail but suspended the sentence and placed her on community supervision for a year. On March 22, 2017, the trial court entered an order terminating community supervision. The order was on a form that gave the trial court a number of options. The court chose, “The period having expired, defendant is discharged by operation of law.” It did not not choose, among other possibilities, “The Court finds defendant has satisfactorily fulfilled the conditions of supervision. Accordingly, this Court ORDERS the verdict set aside; the indictment, complaint, or information dismissed; and defendant discharged from supervision.” This latter option is often called “judicial clemency.” See Cuellar v. State, 70 S.W.3d 818, 819 (Tex. Crim. App. 2002). We adopt that shorthand rendition in this opinion.
On November 1, 2019, more than two years after she was discharged from supervision, Appellee moved the trial court to enter an order granting judicial clemency. The State objected for lack of jurisdiction because the motion was filed more than 30 days after Appellee was discharged from supervision.
The trial court concluded that it had jurisdiction because the statute at issue expresses no time limit, policy considerations support the lack of a time limit, and Appellee was “rehabilitated and ready to re-take her place in law-abilding society.” The State appealed the ruling, and the court of appeals affirmed the trial court’s order. State v. Brent, 615 S.W.3d 667, 670 (Tex. App.—Houston [1st Dist.] 2020).
The court of appeals saw “no textual basis for” requiring discharge and judicial
The court of appeals relied on Cuellar for the proposition that “[t]he purpose of judicial clemency is to grant a special form of relief to defendants who have been ‘completely rehabilitated.‘” Id. at 675 (quoting Cuellar v. State, 70 S.W.3d 815, 819 (Tex. Crim. App. 2002)). It reasoned that rehabilitation is a process that may not be completed during community supervision, and a defendant’s post-discharge conduct may be the best evidence of rehabilitation. Brent, 615 S.W.3d at 675. So a temporal limit on a trial court’s jurisdiction “inhibits the court’s ability to assess whether the defendant is rehabilitated and thwarts the purpose of the statute.” Id. The court of appeals concluded that, “based on the statute’s text, structure, and purpose, we hold that article 42A.701 gives trial courts the discretionary power to grant judicial clemency at any time after the defendant is discharged from community supervision under the article.” Id.
II. Analysis
Under the plain terms of
II.A. Statutory Construction
In construing a statute we focus on its text. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). If the meaning of the text “should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.” Id. (quoting Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). If the text “is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.” Boykin, 818 S.W.2d at 785 (internal quotation marks omitted) (quoting Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991)). The only exception is where the plain meaning “would lead to absurd consequences that the Legislature could not possibly have intended[.]” Boykin, 818 S.W.2d at 785. In that case a court may resort to extratextual considerations. Id. at 785-86.
Prolonged inaction by the Legislature in the face of a judicial interpretation of a statute implies approval of that
II.B. Article 42A.701(f)’s Text
With two exceptions immaterial to this case,
(f) If the judge discharges the defendant under this article, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea. A judge acting under this subsection shall dismiss the accusation, complaint, information, or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense of which the defendant has been convicted or to which the defendant has pleaded guilty[.]
There are two types of early termination. First, there is early termination at the trial court’s discretion: A trial court may terminate supervision early for a defendant who “has satisfactorily completed” at least two years or one-third of his supervision period, whichever is less.
Then there is full termination: “On the satisfactory fulfillment of the conditions of community supervision and the expiration of the period of community supervision, the judge by order shall: (1) amend or modify the original sentence imposed, if necessary, to conform to the community supervision period; and (2) discharge the defendant.”
In short, a grant of judicial clemency depends on discharge “under this article,” and discharge under
The court of appeals also erred to characterize discharge and clemency as “separate forms of relief, created and governed
The majority view reached by every other court of appeals—that clemency must be exercised within 30 days of a defendant’s discharge from supervision—seems to enjoy the Legislature’s implicit approval.
II.C. Legislative Inaction and Action Impliedly Support the Majority View
Several courts of appeals across Texas from 2011 to 2018 held that the trial court has plenary jurisdiction to grant clemency for up to 30 days after the expiration of the supervision. E.g., Poornan v. State, No. 05-18-00354-CR, 2018 WL 6566688, at *2 (Tex. App.—Dallas Dec. 13, 2018, no pet.) (mem. op., not designated for publication); State v. Perez, 494 S.W.3d 901, 905 (Tex. App.—Corpus Christi 2016, no pet.); Buie v. State, No. 06-13-00024-CR, 2013 WL 5310532, at *2 (Tex. App.—Texarkana Sept. 20, 2013, no pet.) (mem. op., not designated for publication); State v. Shelton, 396 S.W.3d 614, 619 (Tex. App.—Amarillo 2012, pet. ref’d); State v. Fielder, 376 S.W.3d 784, 784–85 (Tex. App.—Waco 2011, no pet.).
In that same span of time the Legislature repealed, re-organized, and amended the community supervision statutes but never countermanded the holdings by various courts of appeals limiting a trial court’s jurisdiction to 30 days following the expiration of a period of community supervision. E.g.,
That implied approval is bolstered by legislative actions reinforcing the link between the expiration of community supervision and the exercise of judicial clemency. For example, the form that the Legislature directed the Office of Court Administration to adopt for terminating probation must be used by “a judge discharging a defendant” under
Similarly, the guilty-plea admonishment in felony cases and the written notice to defendants who are getting community supervision both advise the defendant that if he is placed on community supervision and satisfactorily fulfills its conditions, then “on expiration of the period of community supervision, the court” may exercise judicial clemency under
II.D. Cuellar Is Inapposite
Contrary to Brent‘s assertion, Cuellar did not say that the purpose of judicial clemency was “to grant a special form of relief to defendants who have been ‘completely rehabilitated.‘” Brent, 615 S.W.3d at 675 (quoting Cuellar, 70 S.W.3d at 819). Cuellar instead recognized that judicial clemency was conditioned on a trial judge’s belief “that a person on community supervision is completely rehabilitated.” Cuellar, 70 S.W.3d at 819. Cuellar thus tied judicial clemency to rehabilitation “on community supervision” and not to remote eventualities. See id. Cuellar does not support the court of appeals’ conclusion that trial courts have never-ending jurisdiction to grant judicial clemency.
Even if the purpose of judicial clemency were complete rehabilitation, that would not supply a trial court with perpetual jurisdiction. “[J]urisdiction is granted by law when it is either directly conferred or ought to be implied from the jurisdiction directly granted.” Ex parte Hughes, 129 S.W.2d 270, 273 (Tex. 1939). It “is conferred by constitution or by statute.” State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002) (plurality op.). “Plenary power does not create jurisdiction where none exists under the law; instead it is a phrase used to describe ‘a court’s full and absolute power over the subject matter and the parties in a case,’ which only exists as defined by statute or rule.” Ex parte Donaldson, 86 S.W.3d 231, 234 (Tex. Crim. App. 2002) (Keasler, J., concurring) (footnote omitted) (quoting plenary power, BLACK’S LAW DICTIONARY 689 (7th ed. abridged 2000)). Authority to grant judicial clemency to those who have satisfactorily fulfilled conditions of probation does not confer never-ending jurisdiction on trial courts to grant judicial clemency for eventual rehabilitation remote from and unrelated to community supervision.
Appellee’s community supervision expired in 2017. The trial court purported to grant her judicial clemency in 2019. At that point the trial court had no jurisdiction to take any action. Consequently, its order granting clemency is void.
III. Appellee’s Counter-Arguments
Appellee points to subsection (g)’s exceptions to
But even if Subsection (g) expressed the only exceptions to the statute, that would not confer perpetual jurisdiction on a trial court to grant judicial clemency. Subsection (g) merely excepts certain cases from
Appellee argues that judicial clemency is not a motion for new trial or in arrest of judgment and so not subject to the 30-day limit on plenary power. But an argument could be made that even 30 days is too long. For one thing, judicial clemency grants more relief than does an order granting a new trial or arresting a judgment because clemency not only claws back the verdict and/or guilty plea, it dismisses the charging instrument.
Appellee argues that petitions for nondisclosure are a closer analog to judicial clemency than are motions for new trial or in arrest of judgment. She points out that the statute authorizing such petitions specifies only how soon they can be filed, and it places no limit on how long afterwards they can be filed. See
But regardless of the merits of the foregoing arguments, nondisclosure is not like judicial clemency. A nondisclosure order does not dismiss a charging instrument, withdraw a guilty plea, or set aside a verdict. It merely hides from the public the earlier proceedings that resulted in a deferred adjudication. See
Appellee points to shock probation and post-conviction DNA testing as examples of trial courts’ plenary power extending beyond 30 days. But jurisdiction over shock probation is explicitly granted by statute. See
Appellee points to
A defendant’s obligation to pay a fine or court cost as ordered by a
judge is independent of any requirement to pay the fine or court cost as a condition of the defendant’s community supervision. A defendant remains obligated to pay any unpaid fine or court cost after the expiration of the defendant’s period of community supervision.
IV. Conclusion
The court of appeals erred to hold that a trial
Delivered: October 20, 2021
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