Applying For a Texas Pardon

Last week we looked at Texas executive clemency (pardons) and the opportunity convicted persons have to restore their citizenship rights through full, conditional, or innocence based pardons.  Now a short study of how folks go about applying for a pardon.

The pardon process begins with a lengthy application process. Before beginning the Board of Pardons and Parole recommends the applicant obtain the following documents: (1) offense reports for any arrests; (2) certified court documents for these arrests including complaints, indictments,  judgments, orders of dismissals, etc; (3) an official criminal history statement from their local county sheriff; and (4) three current letters of recommendation from persons other than family members who are familiar with the applicant.

The official pardon application form is found at the Board of Pardons and Parole website.   After downloading the handy form allowing an applicant to fill in information using a standard word-processing program, the person carefully completes the application using the pardon application checklist, also provided.

There are limitations to applying for executive clemency in Texas, however.  The Board will not consider a full pardon requests for the following cases: treason, arrests with no conviction, deferred adjudications, early dismissals from probation, Class C misdemeanors, out-of-state felony convictions, federal convictions, or applicants who were denied a full pardon less than one year prior to the present application. 

An application for a pardon in Texas can be a tricky process.  If you are interested in seeking a pardon, contact a qualified Texas criminal defense lawyer to assist you in preparing the application. 

Texas Executive Clemency

Several potential clients have called recently asking about applying for a pardon. In Texas, the governor has the authority to grant clemency (a pardon) upon the written recommendation of a majority of the Texas Board of Pardons and Paroles. Clemency includes full pardons, conditional pardons, pardons based on innocence, commutations of sentences, and emergency medical reprieves. Capital cases are an animal all their own and won't be discussed in this article.

A full pardon restores certain citizenship rights forfeited by law as the result of a criminal conviction, such as the right to serve on a jury, the right to hold public office, and the right to serve as Executor or Administrator of an estate. A full pardon removes barriers to some, but not all, types of employment and professional licensing. Licenses are granted at the discretion of the state licensing boards of each profession, and it's advisable to contact those boards directly to learn whether a pardon is necessary or sufficient to restore licensing eligibility. A person who is convicted and who receives a full pardon is entitled to an expunction of all arrest and court records relating to the conviction. Importantly, an arrest is not automatically expunged upon the grant of a full pardon.

Interestingly, in Texas voting rights are automatically restored when a person discharges a felony sentence. Effective September 1, 1997 the legislature restored voting rights to felons convicted in Texas once a person fully discharges the felony sentence, including any term of incarceration, parole, or supervision, or completes a period of probation ordered by any court. See Texas Election Code, sec. 11.002.

A person with a conditional pardon remains subject to conditions of release. A conditional pardon does not restore civil rights or rights of citizenship, and the governor can revoke the pardon if a person does not comply with the conditions of release. A pardon based on actual innocence exonerates the person of the crime and erases the conviction. To consider a pardon for innocence, the Board requires either evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge in a state habeas action indicating actual innocence.

Applying for executive clemency is a service many Texas criminal defense attorneys provide for prospective clients.  Next time we'll look at the application process and how a good defense lawyer can help the client navigate these tricky waters.

What Would Your Mother Think?

Recently, several student-athletes have run afoul of the criminal law. In December 2007 two Texas A&M football players, Yemi Babalola and Brandon Joiner were suspended indefinitely after their arrests for robbery and drug offenses. In August 2007 a former Bryan High School basketball player, Michael Young, was sentenced to life in prison for stabbing a local woman 42 times.

Nothing hurts more than seeing a promising athlete's career fade-to-black because they were not responsible enough to work hard, play fair, keep clean, and stay out of trouble. Criminal defense lawyer, Micheal Taheri, featured in an article in the "Buffalo News," offered a simplistic, yet unique method of encouraging his client athletes to stay clear of law enforcement:

Amherst attorney Michael S. Taheri looks at all these incidents, shakes his head, and offers a simple piece of advice for student-athletes everywhere.

“In any given situation, I tell them to ask themselves, ‘Would my mother be proud of me if she saw what I am doing at this moment?’ If you look at your actions from that perspective, it can keep you out of a lot of trouble.”

“I try to explain to them that the things they do in their high school years can have serious ramifications for them years down the road. When they apply for sports scholarships, many colleges ask them right up front, ‘Have you ever been convicted of a crime?’

“When they hit the job market, a lot of employers ask the same question. A DWI or drug conviction at age 17 can hurt you down the road.”

About student-athletes, Taheri also commented:

“Every year, I see more and more of them getting into trouble. Every year, I see situations where outstanding student- athletes who have the potential to be scholarship players, or even potential pros, throw it all away for drugs or alcohol.”

Student-athletes, especially the most accomplished ones, are highly visible in their schools, often popular and often faced with many temptations, including opportunities to attend parties where drugs and alcohol are available.

Top student-athletes are sometimes coddled and often put on a pedestal by American society. But society also subjects the young athletes to extreme pressures — including the pressure to succeed, and peer pressures that lead some into illegal conduct.

Although not confined to the student-athlete, there are several common criminal trouble spots facing young people, especially in a college town where temptations abound:

• A DWI arrest can cost an athlete and his parents plenty. Fines imposed by a judge, alcohol evaluation and counseling, various state fees, increased insurance costs and legal fees can put them in a financial hole for years.
  

• Obtaining alcohol for anyone younger than 21 can result in criminal prosecutions for providing alcohol to a minor, endangering the welfare of a minor, or other crimes.

• Possessing marijuana or other drugs can result in both driver's license suspensions and jail time.

• Even consensual sexual conduct with an individual under age 17 can result in a criminal prosecution. An athlete who is 17 years or older, having sex with a 16- year-old, could potentially be prosecuted, even if the girl misrepresented her age.

• A student who sends nude images of a minor over the Internet could be prosecuted under tough federal and State child pornography laws.

• Harmful hazing activities — such as forcing a teammate to drink large amounts of alcohol — could constitute a crime be punishable by up to a year in prison, or longer.

Student athletes face many pressures in our culture to perform. But Helping Parents Parent is part of the job of the criminal defense lawyer. If we can help save even one, the effort is well worth it.

Unforeseen Consequences of Conviction (III)

A collateral consequence of conviction is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law. We looked at different aspects of collateral consequences here, here, and here. Our final installment of collateral consequences show how holders of professional licenses, parties in a suit for divorce, or contractors for the Department of Defense may all suffer serious consequences from a criminal conviction, well beyond their sentence.

The federal Adoption and Safe Families Act of 1997 prohibits individuals with certain criminal convictions from being approved as foster or adoptive parents. These convictions include a felony conviction for child abuse or neglect, a felony conviction for spousal abuse, a felony conviction for a crime against children, and others. In a Texas suit for divorce a court may grant a divorce in favor of one spouse if during the marriage the other spouse has been convicted of a felony.

A person convicted of any criminal offense involving dishonesty or a breach of trust may not become, or continue, as an institution-related party with respect to a federally insured depository institution, own or control an insured depository institution, or otherwise participate in the conduct of the affairs of such an institution. In the same vein, a person who has been convicted of a felony is subject to having their investment adviser registration suspended or revoked. In Texas, a person convicted of a felony may not serve as director, manager, or managing participant of a Texas state bank unless the banking commissioner consents in writing.

Persons convicted of fraud, or any felony, arising out of a contract with the Department of Defense are prohibited from working in a management capacity for a defense contractor or serving as a consultant for any company that is a defense contractor.

Any person subject to a lifetime sex offender registration requirement is ineligible for federally assisted housing. A sex offender registered in any state who moves to another state must notify the FBI and the new state of residence. Federal sex offenders are required to register in the states in which they live, are employed, carry on a vocation, or go to school.

The Texas State Board of Medical Examiners must suspend a physician's license on proof the physician has been convicted of a felony. The Texas State Board of Public Accountancy may suspend a license of a person convicted a felony or misdemeanor involving fraud or dishonesty. The Texas Department of Insurance may not issue a certificate of authority to act as an insurer if a corporate officer, or member of the board of directors, has been convicted of a felony involving moral turpitude or breach of fiduciary duty.

Clients and defense lawyers beware. The unforeseen consequences of conviction lurk in the shadows to trap the unwary and unsuspecting. Consequently, the criminal defense lawyer should always ask the client with pending charges the following three questions: (1) Are you an alien or United States citizen? (2) Do you have any prior convictions? and (3) Do you have any governmental licenses, permits, employment, or benefits? This should give the lawyer the necessary information to examine most of the collateral consequences the client will face.

Finally, my thanks to the research efforts of attorney, Robert Udashen, who made this series possible. Go here for a download of Robert's article presented at the 2007 Rusty Duncan Advanced Criminal Law Course.

Unforseen Consequences of Conviction (II)

We started this series on collateral consequences of a criminal conviction here. Many problems the convicted person faces are the result of these collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime. Following is the next installment on the non-comprehensive overview of collateral consequences applicable to persons convicted of a crime for which the criminal defense lawyer should be aware.

One of my readers, Hunter Biederman, (Frisco DWI Lawyer and Attorney Blog) pointed out a federal drug-related conviction can make a person ineligible for federal grants and loans for educational purposes. Some more consequences of a drug-related conviction are ineligibility for federal work-study and Upward Bound from the Department of Education. Those convicted of a drug-related felony are ineligible for any grant, contract, loan, professional license, or commercial license provided by an agency of the United States through the Denial of Federal Benefits Program. Those convicted of a drug-related felony are excluded from Medicare.

A drug offender may be ineligible for rural housing loans, conservation programs, and food stamps from the Department of Agriculture. An offender may be ineligible for grants and contracts from the Department of Defense. An offender may be ineligible for loans from the Small Business Administration. An offender may be ineligible for disaster assistance from the Federal Emergency Management Agency.

In Texas, a person convicted of a felony may be refused a liquor or alcohol permit for three years after release from confinement, supervision, or parole. A person convicted for a felony while holding an original or renewal permit is subject to cancellation or suspension of the permit.

A prepaid higher education tuition scholarship terminates if the student to whom the scholarship is awarded is convicted of a felony or Class A misdemeanor.

A person or business entity that enters into a contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. It is an affirmative defense to a civil action for damages for personal injury that the plaintiff, at the time the cause of action arose, was committing a felony for which the plaintiff has been convicted and which was the cause of the damages suffered.

More on unforeseen consequences to come.

Unforeseen Consequences of Conviction

Criminal defense lawyer Shawn Matlock started a series on the collateral consequences of being convicted of a crime. Others have been writing recently in other venues about this very important client issue. USA Today wrote about collateral consequences here. The Sentencing Law and Policy Blog wrote about it here. Others wrote here.

I had ideas to share with my readers about the unforeseen consequences of Texas state convictions. Many problems the convicted person faces are the result of collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime.

I wrote about the consequences of conviction for the non-citizen here. Over the next few weeks I'll provide a non-comprehensive overview of some collateral consequences applicable to others convicted of a crime in Texas.

A person's voting rights are affected by a felony conviction. However, those rights can be restored if a judge chooses to exercise judicial clemency, based upon the successful completion of felony probation. Similarly, a person convicted of a felony cannot serve on a jury or grand jury. However, like the right to vote, if a judge chooses to exercise judicial clemency a felony conviction can be wiped away and the person's eligibility to serve on a jury can be restored.

A person convicted of a felony cannot hold public elective office. A person convicted of a felony may not legally possess a firearm for five years after release from confinement, supervision, or parole. A person convicted of a misdemeanor family violence offense may not legally possess a firearm for five years after release from confinement, supervision, or parole.

For DWI convictions a collateral consequence of conviction is a driver's license surcharge paid annually for three years. The more times one has been convicted of DWI the higher the surcharge.

Convictions that result in a Texas driver's license suspension include: certain alcoholic beverage code violations; a breath/blood test failure in a DWI case; a breath/blood test refusal in a DWI case; criminal mischief; criminally negligent homicide; driver's license fraud; DUI for minors; driving with a suspended license; evading arrest; failure to stop and render aid; drug cases; racing on a highway; tampering with a governmental record; habitual traffic violations; and many others.

A person convicted of a felony is potentially banned from the following employment opportunities: labor union officer or organizer; pesticide applicator; court interpreter; meat and poultry inspector; auctioneer; athletic trainer; insurance agent or adjuster; interior designer; acupuncturist; midwife; mortgage broker; speech/language pathologist; hearing aid fitter or distributor; physical therapist; dental hygienist; marriage or family counselor; monitor or aid on school bus; registered nurse; chiropractor; physician's assistant; psychologist; private security detection device sales person; bingo worker, supply manufacture or distributor; coin-operated machine business licensee; and many others.

The criminal defense lawyer should be asking all their clients with pending charges the following questions: (1) Are you an alien or a United States citizen? (2) Do you have any prior convictions? and (3) Do you have any government licenses, permits, employment, or benefits? The answer to these questions will arm the defense lawyer with information necessary to understand and explore most of the collateral consequences their clients will face.

Next time we'll talk about sex offender registration, estate executors, conservatorships, and holders of professional licenses.

Immigration Consequences for Non-Citizens

If you are a non-United States citizen, do not make any decisions about your criminal case without the assistance of a qualified and informed criminal defense lawyer. The immigration consequences of crimes can be severe and in many cases will outweigh the criminal penalty. All people who are not citizens of the United States, including immigrants and refugees, are subject to the possibility of deportation and separation from their family in the United States.

The consequences of a criminal conviction pose special difficulties for non-United States citizens and their defense lawyers. Sometimes just determining what constitutes a "conviction" for purposes of the Federal immigration laws is a daunting task for the criminal defense attorney. Non-citizen clients need a defense attorney who can offer basic assistance and advice about the immigration problems facing them in their criminal case. Also, clients need an attorney who can develop effective strategies in dealing with clients who are facing deportation.

Federal immigration law has changed dramatically in the past several years and the area of law is very complicated. Despite the complex nature of immigration law, criminal defense lawyers must carefully investigate their client's immigration status and understand the crime-related grounds for deportation or removal. Lawyers must also analyze the immigration consequences their client will face and resolve the consequences with an informed strategy. These lawyers must establish a working relationship with qualified immigration lawyers who regularly practice before immigration judges in federal court. Defense lawyers who maintain these relationships with the immigration bar can avoid circumstances with negative immigration consequences and can better keep clients informed of the rapid changes in the law.