Has anyone ever dealt with the situation of a former criminal defendant seeking to expunge his records after being pardoned by the Governor, and while civil litigation arising out of the events of the criminal prosecution is still pending?

This question arises out of the Tulia situation. I need to file an Answer to the Petitions for Expunction. My inclination is that is is not right to expunge the records while the civil suit, to which the records are relevant, is pending. But I can find no authority to put off the expunction.

CCP 55.02(4)(a)(2)(B) provides that expunction based on acquital can be put off while a civil suit is pending, but is silent where the reason for expunction is because of pardon.

My other concern is that CCP 55.04 makes it a class "B" misdemeanor to knowingly release, disseminate, or otherwise USE the records or files subject to an order of expunction. If the Judge grants the petitions, how can any state agency use the expunged records to defend themselves in the civil suit without committing a crime?

Any help or advice would be greatly appreciated! Thanks, MARK.

Isn't a problem for both parties?

If a pardoned person is suing the gov't for wrongful imprisonment, a 1983 claim, or whatever, and while that civil case is pending they have all records of that pardoned arrest, confinement, etc., expunged, ... haven't they just (at least partially) shot themselves in the foot by asking one court to destroy the records they need to help prove their case in the other court?

Interesting ...

Shannon, I think you are exactly right. There are actually three cases which would be affected by this expunction petition: the pending federal civil rights lawsuit, the prosecution of former officer Tom Coleman for perjury related to his testimony in hearings arising out of these cases, and a State Bar grievance law suit to be filed soon (according to the paper).

What about Diane's comment that 55.03(1) as amended, although it now conflicts with 55.04 and presumably 55.02 sec. 5(a), permits continued use of expunged criminal history record information for a criminal justice purpose? Criminal Laws of Texas at 476. See 411.083(c) and 411.082(4), Govt. Code. One might also argue that although the court is specifically given discretion under 55.02 sec. 4 for retention of the files and info for certain purposes in certain situations, those need not be exclusive. Clearly if the State can still use the records where there was an acquittal, it ought to be able to use them where there was a conviction offset by a pardon. If the order so provided, would not you be protected from any claim that the order was violated by the permitted use? In any event, it looks like you would have the benefit of immunity from civil liability. Harper, 913 S.W.2d 207 (dissemination of expunged indictment not use of tangible property)

Thank you Martin, I think those are good thoughts, and I hope that you are right about the imunity from civil liability.

You probably already have talked to Charlotte Bingham about this, Mark, but I'm prepared to help out in any way I can. Indeed, since I also represent a defendant in the Tulia suit, I'm inclined to file a plea in intervention to stand with you on the abatement/limited-purpose retention argument. Let me know if I can provide assistance.