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.

Perry vetoes expunction bill

On Friday, Gov. Rick Perry vetoed a bill (HB 3481) that would have allowed a citizen charged with a crime to expunge all records from their criminal history if the state didn't file a (misdemeanor) information or present an indictment within 180 days of his arrest. The proposed law would also have allowed an individual to expunge all records for any offense which was dismissed, regardless of the statute of limitations for that offense, if the record shows there was no probable cause.

The perfectly coifed governor decried the proposed legislation, claiming that House Bill 3841 "precipitates an untenable injustice to victims and a hazard to public safety."

House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses. Current law provides that an individual is entitled to copies of their expunged records after the statute of limitations has expired. A prosecutor may contest the expunction by proving reasonable cause that the person will be charged, leading the prosecutor to reveal details of the investigation prior to its completion. Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely. Allowing a person to know the identities of witnesses or the nature of their evidence unnecessarily endangers both law enforcement and citizen witnesses prior to an indictment for murder, organized crime, sexual assaults and other serious offenses. House Bill No. 3481 precipitates an untenable injustice to victims and a hazard to public safety. - Gov. Perry's veto statement (June 19, 2009)

I say that if you can't gather enough evidence to file a criminal information in a misdemeanor case or to obtain an indictment within 180 days, then your case hasn't a leg on which to stand.

More troubling is the nonsensical requirement that the statute of limitations must expire before an individual is eligible to expunge all records of a prosecution in a case that was dismissed or reduced to a Class C deferred (special expense fee). The test should be, not whether a period of time has passed but, instead, whether the state is able to charge the individual with that particular offense.

In the case of a Class C deferred, the state may not refile the charge because jeopardy has attached. That individual should be eligible for an immediate expunction.

In the meantime, those pesky little charges will remain on a person's record, laid bare for all, from the curious to the police, to see.

How does that sit with you?

Actual innocence

One of the hardest tasks for a criminal defense attorney is to defend a citizen who is (absolutely) innocent of the charge filed against him. The actually innocent citizen expects a dismissal or, if the prosecutor won't listen to reason, an acquittal.

The job becomes thankless as the process drags on and the innocent citizen is inconvenienced by having to take off work, drive downtown, pay for parking and sit in the courthouse for hours.

I had a client who had been charged with stealing books from a university bookstore. We had a dozen alibi witnesses who would have testified that he was in class at the time of the theft. There was an eyewitness who described the thief to the police -- but her description bore no resemblance to my client. Given all of that, it still took multiple settings before the prosecutor found the courage to let the case go.

After the ordeal was over, my client looked at me and asked how he could get his reputation back -- I had no answer for him. We couldn't even get an expunction because the statute of limitations hadn't run and the DPS would oppose it.