I have a defendant who was charged with attempted capital murder for trying to run over a police officer while he was directing traffic. Prior to trial he was found incompetent and shuttled off to the state hospital to become competent. Through the efforts of the fine doctors and nurses at the state hospital, he became competent enough to stand trial.

At trial he asserted an insanity defense and was found not guilty by reason of insanity. Currently he is awaiting transfer back to the state hospital for evaluation and treatment as a result of the verdict.

His attorney has filed a motion to expunge the case.

I have researched case law and have been unable to locate a case with similar facts or that even discusses the effect of a not guilty by reason of insanity verdict on an expunction. I know that this verdict is the functional equivalent of an acquittal, but the court has to maintain jurisdiction due to the involuntary commitment to the state hospital, (since this case did involve a violent act).

In the past our office has contested expunctions when we had related cases pending or there was an ongoing investigation that necessitiated we keep the file from the acquitted case. This situation is somewhat more unique. Unless and until the facility holding him determines he is no longer a danger, the requirement that the court maintain jurisdiction functionally seems to make him ineligible for an expunction.

So, what do yall think? Does he still have the right to an expunction or is he out of luck because of his mental situation?

I hope you will fight the expunction. It would be idiotic to destroy the records of an offense that will likely happen again, when the defendant is released from medical care.

This is a good example of the lack of long-term thinking when it comes to records. While I can agree that such records should not be released to the public, they certainly should remain available for law enforcement.

First, while not weighing in on the expunction issue per se, though I am inclined to support John's comment, I would note that transfer of NGRI cases is discretionary when the index offense involved an act attempt or threat of SBI (46.03(4)(d)(1). In that section, the court is not required to maintain jurisdiction and may transfer to a court having mental health jurisdiction. (This turns out to create problems that need to be resolved legislatively as persons are treated differently depending on whether the case is transferred or no, an equal protection issue. Amd some know this is a passionate issue for me.)

Second, as to the sealing of the records: The records of the original trial are and, in my mind, should be available for public access, as are the records of all criminal proceedings. It is but that the records of the mental health proceedings which are sealed pursuant to the requirements of the Health & Safety Code.

And a third comment, it may or may not related to expunction, but an NGRI finding is predicated on the foundation that the accused did, beyond a reasonable doubt, commit the act with which charged. This is not a guilty-in-fact finding, but one which exculpates the defendant, albeit that the act was committed by same.

After consulting with our local mental health expert I have come up with the following analysis.

The defendant IS incarcerated in a mental health facility. The director of that facility has NOT found that he should be released.

Regardless of the issue of discretion, the court HAS exercised its discretion so jurisdiction is established. (Even if the district court had transferred the case to a mental health jurisdiction court, there still has to be some file and documentation establishing why it is necessary and proper to involuntarily commit this individual).

It was always my intention to fight this expunction. (Our Criminal District Attorney has taken a firm stance on these and non-disclosures) I just wanted to see if anyone else had EVER seen anything like this. Once again, the expunction statute is exposed as horribly cobbled together and ill-thought out legislation. There is no catch all provision that provides for situations like this so, I will base my argument on the conflict between it and 46.03 requiring some sort of after verdict jurisdiction.

Ahh, another head-long plunge into uncharted territory!

Thanks for the input.

Manuel

I hate to say it, since it is so clearly wrong in the greater sense of the word, but 46.03 says "A defendant who has been found not guilty by reason of insanity shall stand acquitted of the offense charged and may not be considered a person charged with a criminal offense."

Is there some way to characterize the art. 55.01 right of expunction, i.e., "the person is tried for the offense...and is acquitted by the trial court," exclusive of NGRI verdicts?

Now I'll try to answer my own question...

Can you perhaps argue that the NGRI verdict and the evidence leading to it is not "records and files relating to the arrest." How about this argument: the defendant was arrested for a crime for which he is not guilty, but the judgment acquitting him serves a different purpose than a regular NG verdict, because it also records a finding that the defendant was insane." Therefore, we may agree that the records of his arrest are expungable, but that the records reflecting his insanity and his conduct which resulted in that conclusion are not "records and filed realting to the arrest."

For example, we can expunge less than all of the crimes arising from a single transaction, which means we keep the records relating to one charge and expunge only the records which relate to the remaining charge(s). See Ex parte E.E.H., 869 S.W.2d 496. Can't we also expunge the records relating solely to the "arrest" while leaving intact the records which relate to the finding of insanity?