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recognizing that "courts should seek to interpret statutes such that their constitutionality is supported and upheld" citing Lebo v. State , 90 S.W.3d 324, 330 (Tex. Crim. App. 2002)
Summary of this case from Martin v. StateOpinion
NO. PD-0020-21
10-20-2021
The STATE of Texas v. Lakesia Keyon BRENT, Appellee
John Crump, for State. Miranda Dawn Meador, for Appellee.
John Crump, for State.
Miranda Dawn Meador, for Appellee.
OPINION
Keel, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, Walker, Slaughter, and McClure, JJ., joined.
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 815, 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 clemency to occur together. Id. at 674. Without such a requirement the trial court's jurisdiction did not expire 30 days after it discharged the defendant from supervision. Id. Rather, the court saw discharge from supervision as "a precondition for judicial clemency." Id. Discharge marks the beginning of a trial court's authority to grant such clemency, "but it says nothing about when the trial court's power expires. " Id.
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 Article 42A.701(f), judicial clemency hangs on a defendant's performance on and discharge from community supervision. Tex. Code Crim. P. art. 42A.701(f). In the absence of any other source of jurisdiction, a trial court's power to grant judicial clemency is limited to its 30-day plenary power. That understanding was embraced by all the courts of appeals to consider the issue between 2011 and 2018, and the Legislature never countermanded it. On the contrary, the Legislature reinforced the link between discharging a defendant from community supervision and granting judicial clemency. Furthermore, jurisdiction must be conferred; lack of jurisdiction is the default position. Nothing confers never-ending jurisdiction on the trial courts to grant judicial clemency, and the court of appeals in this case misread both Article 42A.701(f) and Cuellar to conclude otherwise. A trial court has at most 30 days after discharging a defendant from probation to grant judicial clemency, and a trial court's longer-lasting jurisdiction in other circumstances says nothing about the durability of its jurisdiction to grant judicial clemency.
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 interpretation. State v. Colyandro , 233 S.W.3d 870, 877 (Tex. Crim. App. 2007). Its "re-enactment of a law without change in its verbiage is regarded as a legislative adoption of prior judicial interpretations of said law." King v. State , 117 Tex.Crim. 43, 36 S.W.2d 490, 491 (Tex. Crim. App. 1931). We generally give little weight to later legislative enactments when interpreting a prior law. Volosen v. State , 227 S.W.3d 77, 80 (Tex. Crim. App. 2007). But "little" is more than zero. See Ex parte Moss , 446 S.W.3d 786, 792 (Tex. Crim. App. 2014) (holding that Legislature's codification of a judicially-fashioned rule supported earlier statutory interpretation).
II.B. Article 42A.701(f) ’s Text
With two exceptions immaterial to this case, Article 42A.701(f) gives the trial court the option to grant "judicial clemency" when discharging a defendant from supervision. It reads as follows:
(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[.]
Tex. Code Crim. P. art. 42A.701(f). Discharge "under this article," in turn, depends on the defendant's time and performance under supervision. Id. art. 42A.701 (a), (b), and (e). A defendant may be discharged from supervision in advance of or upon expiration of the period of supervision.
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. Id. art. 42A.701(a). Second, a trial court must consider early termination for a defendant who has completed at least half his supervision period or two years, whichever is greater, and who has completed any ordered treatment or counseling and is up-to-date on required payments. Id. art. 42A.701(b). Early termination can be accelerated via "time credits" for certain offenders who fulfill various conditions of supervision or further their education. Id. art. 42A.702.
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." Id. art. 42A.701(e).
In short, a grant of judicial clemency depends on discharge "under this article," and discharge under Article 42A.701 depends on the defendant's time and performance on supervision. So a grant of clemency depends on the defendant's time and performance on supervision. The statute contemplates no other consideration. Rather, judicial clemency is explicitly tied to discharge from supervision, and discharge depends on how well and how long the defendant served on supervision—period. The court of appeals erred to overlook this textual basis for requiring the two to occur together.
The court of appeals also erred to characterize discharge and clemency as "separate forms of relief, created and governed by separate parts of the statute." Brent , 615 S.W.3d at 674. They are not separate because clemency cannot be granted without discharging the defendant from supervision. And the fact that discharge and clemency reside in different subsections of the statute is an artifact of the non-substantive re-organization of the former community supervision statute. See Act of January 1, 2017, 84th Leg., R.S., ch. 770, § 1.01, 2015 Tex. Gen. Laws 2321, 2321–64. The division of the former statute's sections into subsections lends no support to the court of appeals’ conclusion that discharge and clemency are "separate" and that clemency may be temporally divorced from a defendant's discharge from supervision.
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. , Act of September 1, 2017, 85th Leg., R.S., ch. 1017, § 1–3, 2017 Tex. Gen. Laws. 4047, 4047–48 (requiring trial courts in felony cases to admonish and in all cases resulting in community supervision to give written notice to defendants about the possibility of judicial clemency and directing the Office of Court Administration to adopt standardized forms for discharging defendants from community supervision); Act of January 1, 2017, 84th Leg., R.S., ch. 770, § 1.01, 2015 Tex. Gen. Laws 2321, 2321–64 (enacting nonsubstantive revision of community supervision laws); Act of September 1, 2011, 82nd Leg., R.S., ch. 961, § 1–2, 2011 Tex. Gen. Laws 2414, 2414–16 (amending notice provision in former statute dealing with early termination). The Legislature's inaction on the jurisdiction issue in the face of the consistent and widespread holdings by several courts of appeals implies its approval of their interpretation of the statute. See Colyandro , 233 S.W.3d at 877.
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 Article 42A.701. See Act of September 1, 2017, 85th Leg., R.S., ch. 1017,§ 3, 2017 Tex. Gen. Laws 4047, 4048 (but applicable only to discharges that occur after Jan. 1, 2018, id. § 4(d)); Tex. Code Crim. P. art. 42A.701(f-1) and (f-2). The statute does not require or authorize use of the form in any context other than when "discharging" a defendant from community supervision.
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 Article 42A.701(f). Tex. Code Crim. P. art. 26.13(a)(6) ; Tex. Code Crim. P. art. 42A.058. Neither advises that judicial clemency may be granted at any time other than "on expiration" of community supervision or on any basis other than satisfactory fulfillment of the conditions of supervision.
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 , 133 Tex. 505, 129 S.W.2d 270, 273 (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 Article 42A.701 and argues that those exceptions to the statute are evidence that the Legislature intended no other restrictions on Article 42A.701 ’s applicability. In fact, there are other restrictions. See Tex. Code Crim. P. art. 42A.701(f)(1), (2) (excepting from subsection (f) subsequent prosecutions and certain licensure decisions).
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 Article 42A.701. It reads as follows: "This article does not apply to a defendant convicted of: (1) an offense under Sections 49.04 - 49.08, Penal Code ; (2) an offense the conviction of which requires registration under Chapter 62; or (3) a felony described by Article 42A.054." Tex. Code Crim. P. art. 42A.701(g). Excepting drunk drivers, sex offenders, and serious felons from, for example, early termination of community supervision, does not confer never-ending jurisdiction on trial courts to grant judicial clemency.
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. Tex. Code Crim. P. art. 42A.701(f). The State has no opportunity to seek conviction again after a grant of judicial clemency, but it does after an order granting new trial or arresting judgment. Cf. Tex. R. App. P. 21.9(b) ("Granting a new trial restores the case to its position before the fomer trial, including, at any party's option, arraignment or pretrial proceedings initiated by that party."); id. at 22.6 (effect of arrest of judgment is to put the defendant in the position he had before the charging instrument was presented). But the Legislature has never countermanded the longstanding, widespread, and multiple holdings by various courts of appeals adhering to the 30-day rule, and we will not overrule them, either.
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 Tex. Gov't Code § 411.0725(e)(1) and (2). Along the way she endorses an out-of-date assertion that defendants are not given notice about the possibility of judicial clemency. Cf. Tex. Code Crim. P. art. 42A.058 (requiring written notice to defendants about the possibility of judicial clemency when they are placed on community supervision). And she mistakenly asserts that a trial court must declare the defendant "completely rehabilitated and ready to retake her place in society" before granting judicial clemency. Cf. id. art. 42A.701(f) (authorizing judicial clemency on discharge from supervision, and authorizing discharge based on lesser criteria than "complete rehabilitation").
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 Tex. Gov't Code § 411.072 (b) (providing for order that prohibits "criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication community supervision.").
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 Tex. Code Crim. P. art. 42A.202 (granting 180 days continuing jurisdiction in felony cases to grant shock probation). And DNA motions do not depend on plenary power, either, but on the statutes that authorize them. E.g., id. art. 64.01 (specifying conditions for filing motion for DNA testing); id. art. 64.03 (specifying findings required for ordering testing).
Appellee points to Article 42A.651(b) as evidence of a trial court's continuing power to act after a period of community supervision has terminated. It reads in full as follows:
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.
Tex. Code Crim. P. art. 42A.651(b). This statutes speaks to the defendant's post-supervision obligations, not to the trial court's power to enforce them. A trial court has no jurisdiction to revoke community supervision after the period of supervision has expired unless a motion to revoke was filed and a capias issued before the expiration. Moss , 446 S.W.3d at 792 ; Ex parte Donaldson , 86 S.W.3d at 234 ; Tex. Code Crim. P. art. 42A.751. Even assuming for the sake of argument that a trial court could somehow enforce a defendant's post-supervision obligations without a credible threat of revoking supervision, that would not confer perpetual jurisdiction to grant judicial clemency under Article 42A.701(f). The one has nothing to do with the other.
IV. Conclusion
The court of appeals erred to hold that a trial court has never-ending jurisdiction to grant judicial clemency under Article 42A.701(f). We reverse its judgment and remand the cause to the trial court to rescind its order setting aside Appellee's conviction and to dismiss Appellee's motion for judicial clemency.
Yeary, J., filed a concurring opinion.
CONCURRING OPINION
Yeary, J., filed a concurring opinion.
When a defendant satisfactorily fulfills the conditions of her community supervision and the period of her supervision expires, Subsection (e) of Article 42A.701 of the Texas Code of Criminal Procedure requires the trial court judge to discharge her. TEX. CODE CRIM. PROC. art. 42A.701, §§ (e). According to Subsection (f) of the same statute, if the judge so discharges a defendant, "the judge may set aside the verdict or permit the defendant to withdraw [her] plea." TEX. CODE CRIM. PROC. art. 42A.701, § (f) (emphasis added). The Court has described this latter discretion as a kind of "judicial clemency." Cuellar v. State , 70 S.W.3d 815, 819 (Tex. Crim. App. 2002). The trial court's authority to grant this judicial clemency under Subsection (f) is triggered by the discharge of the probationer under Subsection (e). But Subsection (f) does not, at least explicitly, otherwise place any temporal limit on the trial court's discretion to grant it.
Every court of appeals to confront this absence of an express temporal limitation—until now—has held that a trial court may not exercise its discretionary judicial clemency authority beyond the thirty days of its plenary jurisdiction following the mandatory discharge of the probationer in accordance with Subsection (e). But in the present case, the First Court of Appeals concluded that, in the absence of explicit limiting language in Subsection (f), the trial court was authorized to exercise its judicial clemency discretion as late as two years after Appellee's mandatory discharge from community supervision under Subsection (e). State v. Brent , 615 S.W.3d 667, 675 (Tex. App.—Houston [1st Dist.] 2020). We granted the State's petition for discretionary review to resolve this dispute. Today the Court correctly reverses.
See State v. Perez , 494 S.W.3d 901, 905 (Tex. App.—Corpus Christi 2016, no pet.) ; 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.) ; 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) ; 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).
BACKGROUND
Convicted of misdemeanor theft, Appellee was sentenced in March of 2016 to 180 days in jail and placed on one year of community supervision. A year later, in March of 2017, upon Appellee's successful completion of her probationary period, the trial court entered an order discharging her from community supervision as required by Article 42A.701(e) of the Code of Criminal Procedure. Then, more than two years later, in November of 2019, in response to a motion filed by Appellee, the trial court entered an additional order setting aside Appellee's conviction and dismissing the information, pursuant to Article 42A.701(f) of the Code of Criminal Procedure. At the same time, the trial court rejected the State's contention that, because its jurisdiction had lapsed, it lacked statutory authority to grant this judicial clemency at such a late date.
Together, Article 42A.701, Subsections (e) and (f), provide:
(e) 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.
(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 [except for two enumerated circumstances not applicable here].
Tex. Code Crim. Proc. art. 42A.701, §§ (e), (f).
The State appealed. See TEX. CODE CRIM. PROC. art. 44.01(a)(1) (authorizing the State to appeal from an order that dismisses an information). The court of appeals affirmed the trial court's order of dismissal, however, concluding that, "based on the statute's text, structure, and purpose, [it] gives trial courts the discretionary power to grant judicial clemency at any time after the defendant is discharged from community supervision" under Article 42A.701. Brent , 615 S.W.3d at 675. The court of appeals reasoned that:
[t]he purpose of judicial clemency is to grant a special form of relief to defendants who have been "completely rehabilitated." Cuellar , 70 S.W.3d at 819. But rehabilitation is a process. Many defendants will not be completely rehabilitated until sometime after they are discharged from community supervision. Moreover, the best evidence of rehabilitation will often be the defendant's conduct post-discharge, when the defendant is no longer under direct supervision and threat of revocation. Thus, limiting a trial court's jurisdiction to grant judicial clemency ... inhibits the court's ability to assess whether the defendant is rehabilitated and thwarts the purpose of the statute.
Id. ; see also State v. Shelton , 396 S.W.3d 614, 621 (Tex. App.—Amarillo 2012, pet. ref'd) (Pirtle, J., dissenting) (arguing that to place a temporal limitation on a trial court's authority to grant judicial clemency when the statute does not plainly prescribe one "is inconsistent with the public policy purpose of judicial clemency altogether.").
We granted the State's petition for discretionary review to examine the court of appeals conclusion, especially given its incongruity with the conclusion of every other court of appeals so far to have addressed the issue. See TEX. R. APP. P. 66.3(a) & (e) (discretionary review may be appropriate when "a court of appeals’ decision conflicts with another court of appeals’ decision on the same issue[,]" and when "the justices of a court of appeals have disagreed on a material question of law necessary to the court's decision").
ANALYSIS
"Jurisdiction" is the power to hear a controversy and issue binding decisions; a trial court lacking jurisdiction over a matter has no power to act on that matter. State v. Dunbar , 297 S.W.3d 777, 780 (Tex. Crim. App. 2009). After a criminal conviction, if there is no appeal and no community supervision, the jurisdiction of the trial court expires thirty days after sentence is imposed. Id. If community supervision is granted, the trial court's jurisdiction ordinarily expires once the probationer has been discharged. Ex parte Donaldson , 86 S.W.3d 231, 232–33 (Tex. Crim. App. 2002). So, whether a trial court has continuing jurisdiction to grant judicial clemency under Article 42A.701(f) depends upon whether that provision may be read to confer jurisdiction for that limited purpose at any point beyond the time at which the probationer is discharged under Article 42A.701, Subsection (e). As the Amarillo Court of Appeals observed, in State v. Shelton , in 2012, "the statute is silent" with respect to this issue. Shelton , 396 S.W.3d at 618.
The question for this Court now is how to construe the statute in the absence of express language governing the time frame within which the trial court must exercise its discretionary authority to grant judicial clemency. In Shelton , the court of appeals opined that the close textual proximity of the language of discharge [Subsection (e)] to the language of judicial clemency [Subsection (f)] within the structure of the statute indicated that the decision whether to grant clemency should be made contemporaneously with the discharge. Id. It flatly rejected the idea that the statute was meant to extend a trial court's jurisdiction into the indefinite future, thus allowing a trial court to grant judicial clemency at any point that it might conclude a former probationer had fully rehabilitated himself. Id. at 619. Though the version of the statute in effect when Shelton was decided has since been recodified, and its various provisions broken down into separate subsections, it remains the case that their close juxtaposition suggests that the trial court's discretion whether to set aside the verdict should be exercised at the time that it discharges the probationer's community supervision. But what about the court of appeals’ concern that a temporal extension of the trial court's jurisdiction (to grant judicial clemency) is necessary to effectuate the rehabilitative goal of the statute? Brent , 615 S.W.3d at 675. It is true that, in Cuellar , this Court identified "complete" rehabilitation as the purpose animating the discretionary set-aside under subsection (f) of the statute. 70 S.W.3d at 819. But the Court described this policy in terms of an offender's rehabilitation while he is on community supervision , and not at some later point in time: "[W]hen a trial judge believes that a person on community supervision is completely rehabilitated and is ready to take his place as a law-abiding member of society," it may set aside the verdict or permit him to withdraw his plea. Id. Indeed, when it comes to judicial speculation about policy considerations that may inform the legislative judgment about how long a trial court's jurisdiction should extend to grant judicial clemency, I would simply observe that the Legislature could just as readily have believed that a probationer who has not yet rehabilitated herself by the end of her designated probationary period should not enjoy the grace that judicial clemency affords.
At the time Shelton was decided, both the discharge provision and the clemency provision were contained in the same subsection of then-Article 42.12—Subsection 20(a). See 396 S.W.3d at 616 (quoting former Tex. Code Crim. Proc. art. 42.12, § 20(a), prior to its recodification in Acts 2015, 84th Leg., ch. 770, p. 2360, § 1.01, eff. Jan. 1, 2017). The 2015 recodification divided former Subsection 20(a) into current Subsections (a), (e), and (f) of Article 42A.701, but it did not substantively change the text. See Acts. 2015, 84th Leg., ch. 770, p. 2395, § 4.01.
In the almost-ten years since the various courts of appeals have uniformly construed Article 42A.701(f) in this way, the Legislature has taken no corrective measure to indicate disagreement with the lower courts’ construction. See State v. Colyandro , 233 S.W.3d 870, 877 (Tex. Crim. App. 2007) ("[W]e have long recognized that prolonged legislative silence or inaction following a judicial interpretation implies that the Legislature has approved of the interpretation."). In fact, the only substantive amendment is wholly consistent with the conclusion that a trial court may grant judicial clemency only at the time it discharges the probationer. In 2017, before the court of appeals rendered its decision in the instant case, the Legislature added Subsections (f–1) and (f–2) to the statute. See Acts 2017, 85th Leg., ch. 1017, § 3, eff. Sept. 1, 2017 (but applicable only to discharges that occur after Jan. 1, 2018, id. § 4(d)). These new provisions direct the Office of Court Administration to adopt a standardized form, and mandates that trial courts use it, "in discharging a defendant under this article." The form offers the trial court two options at the time of discharge: either (1) simply "discharge the defendant;" or (2) "discharge the defendant, set aside the verdict ... and dismiss the accusation" against him. Id. This mandatory form assumes that the trial court's discretion to set aside the verdict will be exercised, if at all, at the same time that the trial court discharges the probationer from community supervision.
Added Subsections (f–1) and (f–2) provide:
(f–1) The Office of Court Administration of the Texas Judicial System shall adopt a standardized form for use in discharging a defendant under this article. A judge discharging a defendant under this article must use the form adopted under this subsection. The form must provide for the judge to:
(1) discharge the defendant; or
(2) discharge the defendant, set aside the verdict or permit the defendant to withdraw the defendant's plea, and dismiss the accusation, complaint, information, or indictment against the defendant.
(f–2) The form adopted under Subsection (f–1) must state that a defendant who receives a discharge described by Subsection (f–1)(2) is released from the penalties and disabilities resulting from the offense as provided by Subsection (f).
Acts 2017, 85th Leg., ch. 1017, § 3, eff. Sept. 1, 2017.
The fact that Subsection (f–1) mandates the use of this form at the time of discharge seems to some extent to serve as a ratification of the earlier courts of appeals’ unanimous understanding of the statute. While it is true that, "in interpreting a prior law, we generally accord little weight to subsequent legislative enactments," Volosen v. State , 227 S.W.3d 77, 80 (Tex. Crim. App. 2007), under certain circumstances a subsequent amendment may give unique insight into the proper construction of a statute that may have been ambiguous in an earlier incarnation. Brown v. State , 943 S.W.2d 35, 40 (Tex. Crim. App. 1997) ("[R]ecent amendments to [a] statute ... may be some evidence ... where, ... they appear to be a response to appellate court decisions construing the statute."); Ex parte Robbins , 560 S.W.3d 130, 159 (Tex. Crim. App. 2016) (Newell, J., concurring on improvident grant of State's motion for rehearing). I believe that this is such a case.
The court of appeals delivered its decision in the instant case in December of 2020, long after the Legislature had added Subsections (f–1) and (f–2) to Article 42A.701. Thus, the only outlier decision construing this aspect of Article 42A.701—the court of appeals opinion in this very case—came after the effective date of the 2017 legislative amendment requiring use of the form. At that time, the Legislature could not have been aware that any appellate court would likely disagree with the theretofore unanimous judgment of the various courts of appeals, as reflected in note 1, ante.
And finally, at least as persuasive to me as anything else that my understanding of the statute is the correct one, is my consideration of the well-established rule that "courts should seek to interpret statutes such that their constitutionality is supported and upheld." Lebo v. State , 90 S.W.3d 324, 330 (Tex. Crim. App. 2002). Superficially, at least, the very concept of "judicial clemency" threatens to unduly encroach upon the prerogative of the Executive Department, in violation of the separation of powers mandate of Article II, Section 1, of the Texas Constitution. See TEX. CONST. art. II, § 1 ("[N]o person, or collection of persons, being of one of these departments [Legislative, Executive, and Judicial], shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."). At least one court of appeals has opined that the "judicial clemency" afforded by what is now Article 42A.701(f) is nevertheless constitutional, under the authority conferred upon the courts by Article 4, Section 11A, of the Texas Constitution, because it is tied to the judicial authority to suspend the imposition or execution of sentence and place the defendant on probation. See Hoffman v. State , 922 S.W.2d 663, 668–69 (Tex. App.—Waco 1996, pet. ref'd) ("We find [the] authority granted by article 42.12, section 20 [now Article 42A.701(f) ], differs from the constitutional authority of the executive branch to pardon a criminal defendant after conviction. "); TEX. CONST. art. IV, § 11A (granting authority to the courts, "after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation"); cf. Ex parte Giles , 502 S.W.2d 774, 785 (Tex. Crim. App. 1973) (observing, generally, that what is now Article 42A.701 "was enacted pursuant to the limited grant of authority of clemency to the courts in Article IV, Sec. 11A of the State Constitution").
Were we to adopt the court of appeals’ construction of Article 42A.701(f) and hold that it confers jurisdiction upon a trial court to grant judicial clemency into the indefinite future—whenever the court determines that the defendant has achieved "complete rehabilitation"—it would greatly amplify the risk that the statute may be struck down as a violation of separation of powers. On the other hand, interpreting Article 42A.701(f) to authorize a set-aside of the verdict and dismissal of the accusation only at the time of discharge from community supervision is an approach that more closely adheres to the trial court's constitutional source of authority— Article IV, Section 11A—and therefore seems at least to diminish the risk that the statute might fall under such a constitutional challenge.
In R.R.E. v. Glenn , for example, it was observed:
The apparent conflict between article 42.12, section 20 [now Article 42A.701 ] and the Constitution has not been addressed previously although a similar statute was considered in Snodgrass v. State , 67 Tex. Crim. 615, 150 S.W. 162 and 67 Tex.Crim. 648, 150 S.W. 178 (1912). There, the statute in question was Chapter 44 of the Acts of the 32nd Legislature, section 7[,] which provided that after double the punishment time and if there be no further conviction or charge, upon application the trial court shall set aside and annul the conviction. The Court of Criminal Appeals held the statute was contrary to the constitutional provisions allowing pardons only by the Governor, and was therefore void.
884 S.W.2d 189, 193 (Tex. App.—Fort Worth 1994, writ denied).
CONCLUSION
For these reasons, I agree that the court of appeals erred to hold that Subsection (f) of Article 42A.701 authorized the trial court to grant Appellee's request for judicial clemency more than two years after she was discharged from her community supervision under Article 42A.701(e).