Tuesday, August 10, 2010

Expunction order? What expunction order?

In Texas, as in most states, if a person is found not guilty at trial, he is entitled to expunge all records relating to his arrest and prosecution. Chapter 55 of the Texas Code of Criminal Procedure outlines the requirements to expunge one's criminal history background. The absurdity is that the acquitted party must bear the cost of drafting and filing the petition for expunction.

The expunction order requires all govenmental parties with records related to the arrest and subsequent prosecution of the petitioner to destroy all records in their possession or subject to their control. It is as if a magic eraser has wiped the record clean.

Well, except for the private companies who purchase criminal records from the various local and state agencies and post the information on their online databases. As they update their information records that have been expunged will disappear from their database as update lists are acquired. Private entities who were not a party to the expunction litigation are required to remove the information upon receipt of a certified copy of the court's order.

At least that's how it's supposed to work. Someone might want to send the memo up the the 184th Judicial District Court in Harris County to let them know that it's a Class B misdemeanor for an individual who acquired knowledge of the arrest and is aware of the expunction order to release that information since the judge's website (hosted on the County's website) lists the names and cases numbers of persons who were acquitted at trial and who had their criminal histories expunged.

Art. 55.04. VIOLATION OF EXPUNCTION ORDER.
Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.
Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.
Sec. 3. An offense under this article is a Class B misdemeanor.

Some nightmares just live on and on.

2 comments:

Thomas Hobbes said...

You know, the statute doesn't exactly sat that, "destroy all records in their possession or subject to their control" . . .

Houston DWI Attorney Paul B. Kennedy, said...

Thanks for your comment, though I will beg to differ.

Art. 55.02(c-1) of the CCP states that the DPS shall issue a request to any depository of criminal records to "destroy or return to the court the records in possession of the depository that are subject to the order..." or that the depository "obliterate all portions of the record or file that identify the petitioner..."

The statute is quite clear that all such records pertaining to the arrest that are subject to expungement are to be destroyed or obliterated so that the person acquiring the order can go back to the position he or she was in prior to the arrest.