Sunday, April 12, 2015

2015 TX Lege Update: Status of Expunction Legislation

UPDATE 07/01/2015: Governor Abbott vetoed HB 3579, which would have changed existing exupunction law by focusing the determination of the right to exupunction of an arrest on the offense for which the arrestee was later convicted, or placed on deferred adjudication. Current law does not allow expunction, in most cases, if the arrestee is convicted or placed on deferred for ANY offense arising from the arrest, even if the actual arrested for offense is dismissed. My blog post on the veto and the Governor's justification for it can be found here.  

Legislative efforts to reform expunction law in Texas is neither well covered by traditional media nor well understood among those who seek it. It is not sexy legislation, but in a digital age when virtually all personal history is available by keystroke, expunging an arrest can permit opportunities otherwise crushed.

Expunction requires government officials to destroy records associated with an arrest and resulting formal charge, if any. It also allows the person who has secured the expunction to deny being arrested.

Powerful stuff.

There was a time in the not so distant past when searching for criminal histories required a personal visit to brick and mortar county courthouses. Not any longer. Availability of criminal histories has proliferated with the advent of fee based public filing databases. I have written previously about the bulk sale of criminal histories to these databases by the Texas Department of Public Safety and individual district and county clerks.

In the Texas House, Rep. Terry Canales has introduced HB 1014 which would allow expunction of certain offenses which have resulted in deferred adjudication (DAJ). Deferred adjudication was originally conceived as an alternative to conviction of an offense that resulted in probation. No conviction resulted if the probationary term was successfully completed. The concept, though still in place, has been steadily chipped away in the years since it was conceived. As a result, employers, mortgage companies, and colleges, among others, now typically ask about whether an applicant has ever been placed on or completed a DAJ.

Canales' bill would allow expunction of a DAJ if the DAJ was non-violent, successfully completed, and the person seeking the expunction has no subsequent charge for anything other than a Class C misdemeanor (fine only offenses). From my admittedly biased standpoint, this approach restores the original intention of DAJ and recognizes in a world of internet dissemination, there should be expanded rights associated with non-violent DAJ's.

In the Senate, Sen. Royce West has two bills of note on expunction. The first, SB 1644 expands and clarifies the availability of expunction. The bill would make it more widely available and makes the remedy available sooner for those who qualify. SB 1644 also contains wording also in a separately introduced bill by West, SB 416, prohibiting waiver of the right to expunction.

Many prosecutors (or prosecutor office policy) require waiver of expunction rights as part of plea deals that involve reduction of originally charged offenses. Given the discretion afforded prosecutors, when reductions are offered, criminal defense lawyers and their clients are hesitant to make expunction waiver a deal breaker. Given the current state of the law, it makes little difference anyway: If the reduced charge is anything other than a Class C misdemeanor, expunction is almost impossible. That could change depending on when and how extensive the reform is to existing laws.

Rep. West's proposed legislation recognizes waiver of expunction rights could become more of a practical problem, and would eliminate it altogether. I am anxious to see how much push back to this proposed legislation there will be from prosecutors and law enforcement.

1 comment:

  1. It is my understanding that legislation might be introduced this session to allow a no-billed felony to be expunged even though there is a deferred felony arising out of the same transaction ?

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