Attorney files petition for nondisclosure on a successfully completed deferred adjudication for misdemeanor assault - family violence.

Attorney argues that the statute says "a person is not entitled to petition the court under subsection (d) if the person has been previously convicted or placed on deferred adjudication for...any other offense involving family violence."

Attorney says that means you can petition unless you received deferred adjudication for "any other" offense involving family violence. So, you can nondisclose your first assault - family violence.

This can't be right. Has anyone else encountered this argument? I cannot find any cases or AG opinions that directly address this claim. I thought it was obviously wrong at first, but given how poorly the statute is written...

To my knowledge, there has been no appellate or AG review of the non-disclosure statute. This is not surprising given that any defendant who does not prevail would have to overcome the judge's discretion to deny the nondisclosure because it is not in the "best interest of justice."

I was present for the Senate Criminal Justice Committee hearing on the nondisclosure bill (SB 1477) when it was considered on May 6, 2003. I recall that the family violence exclusion was brought on by the concerns of a citizen attendee who was an advocate against family violence, who expressed concerns about the effect of nondisclosure orders on recidivist spousal abusers. The committee gave the witness some grief about bringing it up for the first time at the committee hearing, but the version of the bill that the Committee reported out favorably included (for the first time) the family violence exclusion. It may be worth getting the legislative history tapes for that hearing to nail this down.

By no means was the intent of the committee (or the legislature) to give domestic violence offenders a free first bite of the apple. I fairly certain that the modifer "any other" was intended to encompass family violence cases other than the ones already enumerated.

Good luck. This may be worth appealing if the judge buys the argument.

In case any one needs it...

Senate Floor Statement that it doesn't apply to family violence offenses - May 20, 2003 at 1:08:15.

House Floor Statement that it doesn't apply to family violence offenses after the speaker initially says that it would apply - May 26, 2003 at 9:19.

HRO Bill Analysis from 5/26/03 states that it doesn't apply to family violence.

Pretty good debates.

Stupid question. How do you get the video recordings online of the floor debates in evidence? Does TRE 803(8) get around the hearsay exception? If you use TRE 902 Self-Authentication, how do you get the video "certified?" Or, do you just ask the Court to take judicial notice of the floor debate like a statute or case law?

Include waiver of the nondisclosure law a condition of any plea agreement. Same for expunction.