If the reporter is not specifically listed in the expunction order, do we still destroy our notes? Two years ago a defendant was found not guilty in my misdemeanor court and had his records expunged. I never got notice of this. He called last week wanting a list of witnesses, exhibits, etc. While talking to him, he mentioned the expunction. I told him I never received a copy of the order and could he send me a copy of the order since all records in clerk�s system had already been destroyed. They don�t even keep copies of the order. I needed to see if I was listed in order. He hand delivered the order with a note on top telling me to not copy, share or keep the order. I was not listed in order. The Texas Supreme Court requires misdemeanor reporters to keep their notes three years. What to do? There seems to be a lot of confusion about this law even with other departments such as probation. Any thoughts and advice are greatly appreciated.

As I understand it, only respondents listed in an expunction order are required to abide by the order.

That is exactly right. You can't be held responsible for following an order that doesn't name you or your agency.

Frankly, this is what makes expunctions nonsense. Rather than trying to locate and obliterate every piece of paper related to an arrest, the law should focus on removing an official record of the arrest from public view. The order of nondisclosure is actually a much better approach to this concept than the order of expunction, as it deals with removing the records from public view.

There are lots of good, ongoing reasons for records to continue to exist in an agency even after an acquittal. The notion that we should all pretend that nothing happened is unrealistic and contrary to human nature.

I do not think that it matters whether or not you were served or otherwise made a part of the expungment proceedings, as was alluded to above.

It seems to me that under the plain language of 55.04, if you have knowledge of the order of expunction, and you violate that order (i.e. release info about the arrest), then you are in violation of the law. Since the court reporter now has knowledge of the expunction, (since she was served with a copy of it by the guy), she cannot violate the law by releasing information about the guy's arrest.



CCP 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.

There is no order expunging the court reporter's records. Someone who knows what they are doing will serve the court reporter and make sure the court reporter is covered by the order. 55.04 covers someone whose records were ordered expunged. In this court reporter's situation, they should comply with other laws regarding retention of their notes until they are properly served with a petition and subsequent order of expunction.

As JR indicates above, there is no order expunging the records the court reporter might release (her notes of the trial). So, she would not be violating any law by releasing those records. An expunction order doesn't automatically extend to any records that might exist anywhere.

This approach is consistent with the notion of notice and hearing accorded every person who might be subject to a court order. Even RTC and the ACLU presumably support the idea that no person should be subject to a judicial order until given notice and an opportunity to be heard.

Furthermore, there are many good reasons why some records might be expunged and others might not be (e.g., the existence of a co-defendant; an ongoing related case involving the same defendant, such as a motion to revoke; a related civil lawsuit; and on and on). There are also many good reasons why one person might know of a defendant's arrest record without violating any laws related to expunction (personal knowledge; separate records, etc).

Finally, no expunction can delete the information recalled by an individual; the expunction, at best, deletes specific records referenced in the expunction order. Otherwise, RTC, you are promoting the prosecution of thought crimes, and I am sure you and the ACLU are against that sort of thing.

[This message was edited by JB on 11-17-07 at .]

I was on vacation last week, but I'm going to have to weigh in on this one. Unfortunately, I think RTC's right. It's one of those odd loopholes in the law that criminalizes anyone releasing expunged information if they learned of an expunction order while with a government agency, regardless of whether they were named in the order. I like JB's argument that there isn't an order expunging tf's records if he isn't named, but I don't think that complies with Article 55.04. The article just says if you know of "an order expunging the records and files of the arrest".

So while tf didn't have to do anything to his records because he wasn't named on the order, once he became aware of the order, he's prohibited from disclosing the information. If the Legislature decides to muck around with the statute yet again next session (why not, they've done it every other year, and just made it more confusing!), this is something that should be changed.

Incidentally, this issue is discussed in Chapter 2 of TDCAA's fabulous new book Expunction and Nondisclosure.

What about contract court reporters who are not technically "employees" of a court, but are "employed" by a court for a limited time/purpose (e.g., while the full-time court reporter employee is out sick)? Is "employee of the state or of any agency or other entity of the state or any political subdivision of the state" defined anywhere?

Andrea, your argument is circular.

The statute, of course, does say that you have to enforce an order you learn about. But, it doesn't say that you then have to expand the order to include any records related to the arrest. That makes no sense and violates all standards of due process limiting the application of a judicial order to the words contained within it.

An expunction order identifies records in the possession of certain agencies and then orders those agencies to expunge THOSE records. It is not an ever-expanding order that applies to records contained anywhere else.

[This message was edited by JB on 11-26-07 at .]

I think you meant me, John, not Gretchen. If I was defending someone against a charge, I'd make your same argument, but for the purposes of advising someone in advance what they should do, I just don't think the statute is clear enough to risk a criminal conviction. 55.04 doesn't require tl to destroy his records, just not release them, and so my advice remains the same. Whether or not you're named on the order doesn't affect the plain language of if you know that an order exists governing the records of the arrest.

I also think it remains a good task for the Legislature to clear up precisely because it IS unclear enough for reasonable minds to differ coming at it from the same angle.

Oh, and Gretchen, I think that the substitute reporter would be considered a government employee for the purposes of that particular case. I'm not aware of anything that defines "employee of the state", though.

Andrea interprets the statute correctly and her advice is also highly recommended. Even if you don't agree with 55.04, the more conservative route would be to interpret is as the plain language reads.

If an entity is not listed on the order for expunction, then clearly that particular entity does not have to comply with the mandate to obliterate/return the records. That point is undisputed. But the item in question here centers around 55.04 and the penalties for not obeying it.

Relatively speaking, Texas expunction laws are very protective of petitioners entitled expunction compared to many other states and speak beyond the immediate effect of an expunction order. To this end, the statute warns agents of the government who become aware of the order. This warning, by the plain wording of the statute, states quite simply that you are not to release information concerning the arrest if you become cognizant of the order.

The plain words of the law do not prevent an employee of government from giving out "information." The plain words prevent an employee from giving out "records and files" that have been expunged. Those records and files that have not been expunged are not subject to the law.

As the court did not expunge the court reporter's notes, she may release that information without any fear of prosecution.

Furthermore, you imply that an employee would be prosecuted for merely repeating information gained from personal knowledge (e.g., testimony during a trial that was observed by a court reporter or anyone else in court at the time). Seems to me that such an interpretation would infringe upon an individual's First Amendment Right to Free Speech. Appellate decisions have clearly held that the expunction law does not require a person to clear their own personal knowledge of an incident, only to avoid using records or files that have been expunged.

If the petitioner is unhappy about the status of the records, he has a means of seeking relief: file a proper expunction petition, serve all proper parties with notice, obtain a proper order and serve it on those parties. Otherwise, quit whining.

Here's the view from here in Fort Worth, appropriate experts having been consulted and such:

A court reporter in Tarrant County, having become aware that there was an expunction, should not thereafter release records of the case of any sort without an appropriate court order. Not even to the requesting defendant.

I see this as a great drafting opportunity for those who like to fix legal loopholes. An expunction petition ought to be required to be served on the court reporter(s). Alternatively, a little statutory language directing that the order must include and be sent to the court reporter(s) could take care of that.

A--

How about rewriting the entire $#*&% statute as a great drafting opportunity?

How about repealing it and incorporating all we have learned into the nondisclosure law? The destruction of records created through the public work of law enforcement and government agencies is generally seen as a bad thing. Directing people to pretend things didn't happen is also unrealistic. On the other hand, there are records that should no longer be public, as when a person's arrest record is not an accurate reflection of that person's character (following an acquittal). Nonetheless, such records often serve other ongoing investigative and prosecutor purposes. A nondisclosure order best serves both of those goals.

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The destruction of records created through the public work of law enforcement and government agencies is generally seen as a bad thing.

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Why would you say that? The whole purpose of the statute is to give the guy a 'do-over' whereby it is like the whole incident did not even happen. The only way to accomplish this is by the complete and utter destruction of any and all records, and by preventing people from disclosing that information under any and all circumstances, under penalty of criminal prosecution. That is the intent of the statute!

If you are orally repeating information that was contained in written records, and you have knowledge of the expunction, then you are in violation of the law!

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Directing people to pretend things didn't happen is also unrealistic.

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No it isn't! If you obey the law then you will have no difficulties.

This law was not made to make things easier on the government or prosecutors. It was made solely to benefit the person who was wrongly accused or charged.

Thank you, RTC, for yet another ACLU sermon.

Your rant lacks the realities that come from actual prosecution of criminal cases. And, by the way, this is a discussion forum, presumably allowing people to float theories and ideas without threat of prosecution or attack by exclamation point. You seem to treat every posting as an opportunity to attack the notion that prosecutors have a reasonable point of view.

As mentioned above, there are many good examples of how the expunction law, while perhaps well-meaning, is an unrealistic approach to accomplishing the goal of restoring the unblemished record of an arrestee. I simply am suggesting that the nondisclosure law is a more realistic approach to accomplishing that goal.

Many prosecutions result in the creation of public records that will never be reached by the expunction law (e.g., newspaper articles, employment records, internal investigations). What if a prosecutor learns about the existence of a prior accusation through a Google or some of these other sources? What if that information leads to the discovery of a witness who could contradict a defendant's claim in a new case? What if the investigation shows that the defendant lied in his prior trial to achieve a verdict of not guilty?

An acquittal is not a declaration of innocence. It is merely a recognition that the State did not achieve proof beyond a reasonable doubt of the guilt of an accused. There may still be substantial useful, truthful information from that investigation and prosecution that should be available to the State, defendant and the world. Our current expunction law does little to accommodate that need.

[This message was edited by JB on 11-27-07 at .]

Because, JB, it's so much fun when the Defendant gets an order of expunction that's actually followed, and then tries a public information act request to get those same records to prove up the civil suit for his illegal arrest.

Another point for going with nondisclosure. We have had that happen. An interesting problem for the defendant. Does he commit a crime by referring to his own expunged records? Is he an accomplice to a prosecutor mentioning those records by luring the prosecutor into talking about them? So many issues, so little time.

I've been saying for a while now that turning all expunctions into nondisclosure would vastly simplify things and still accomplish the goals of an expunction. The purpose is supposed to be that a person is no longer haunted by a wrongful arrest. Prohibiting the state from revealing any information is a perfectly sound way of doing that without taking the very extreme step of actually destroying records.

The most important thing to keep in mind is that there's no going back once you've destroyed something, for good or for ill. I can't tell you the number of times that I've had a person contact me and try to get records from an expunged case. It may be because they're filing some sort of civil suit, as Gretchen mentioned. It may be that there's still a record floating around (whether someone who wasn't listed on the order or didn't comply) and they need to prove they got an expunction. Or it may be to prove they really were acquitted/dismissed. Every time, I have to tell them (1) I have no way of getting any information about your case if it was expunged, and (2) even if I remember exactly who you are and know all about your expunction, I'm legally forbidden to tell anyone about it. People have gotten pretty irate about it.

One thing that is always frustrating to me is that we're not even legally allowed to keep a simple log of what expunctions were granted. That means once we've complied with the request and destroyed all of our records (including the expunction order itself), we have no way of knowing it ever happened except my memory. That means if we missed anything and some files turn up later, we don't have any way to verify that these files are supposed to be destroyed. Obviously you try your best to make sure that won't happen, but it's still going to from time to time.

The thing is, in today's information age, there is no way to completely erase this kind of information. That may have worked in the past, but today you can pull up old newspaper archives with an internet connection and a few clicks of your mouse. And a lot of people miss that private agencies -- newspapers, bail bondsmen, witnesses, or just people on the street -- are not bound by expunctions. ONLY the government (and now agencies that buy records from the government) are bound. So that means that you leave all sorts of records floating around and all sorts of people who will happily talk about your being hauled away in a police car in handcuffs, but you eliminate any official means of proving you didn't do it. In most circumstances, I wouldn't seek an expunction even if I was eligible.