Has anyone seen the new bill on expunction that drastically changes chapter 55.

The TCDLA boast the following:
1. No waiting for S.O.L. Beam decision trumped
2. Expunction available even if offense has no S.O.L.
3. The no arrest within 5 years provision is eliminated
4. Unfiled felonies and misd-- expunction available 180 days after arrest.

Was sentto the Governor

If you don't like it, ask the Governor to veto it. Write a letter and fax it in. If you think it is great stuff, same. Contact Shannon Edmonds for details. Tick Tock.

[This message was edited by JB on 06-14-09 at .]

We'll see what the governor does before panicking.

On the SOL, basically, there are now three ways to get an expunction on a dismissal/not filed instead of two. (Used to be just SOL or lack of PC.) One is case never filed and 180 days have passed. Two is case was dismissed or quashed, 180 days have passed for felonies (immediate for misdemeanor), AND lack of PC. Three is SOL has run. So dismissals aren't really affected that much, just the cases that were never filed. We'll all have to make sure our police departments and intake prosecutors are aware that charges need to be filed within 6 months if the defendant was ever arrested, even if he was immediately released.

They did take away the no felony convictions within 5 years requirements. I don't know, I can't recall ever objecting on that one anyway. It didn't seem to come up often.

One interesting point -- the Class C loophole is back! It used to be that only Class C deferreds out of JP and muni court could get expunged, because they didn't serve probation under Article 42.12. In 2003, they amended the statute so that ALL Class Cs were eligible. But in this one, they took that language out. So it appears that once again, Class C deferreds out of county court are not eligible for expunction. I'm not sure of the reason for this -- it didn't seem to be in any of the earlier versions of the bill, but it suddenly sprang up in this one.

The biggest change to the expunction bill, though, is that it suddenly gave prosecutors absolute discretion to agree to an expunction even if none of the conditions are met. I think this has some big separation of powers issues, and it could become a nightmare if there are charges that could be filed in multiple counties and ONE of those DAs agrees to an expunction. That section is my biggest problem with the bill.

You are being far too kind to the language of the bill. The new language opens up potential expunction 180 days after any dismissal. Yes, there is some language about the type of dismissal, but that just puts us all in court litigating why we dismissed. And, for those offices that don't follow every petition, it could mean suddenly being faced with an order to destroy documents being used in an ongoing investigation. It is a terrible bill, designed to play gotcha with critical investigative materials. The notion that investigators must protect their investigative materials a mere 180 days after an arrest is ludicrous. Expunction was originally designed to help the INNOCENT, not merely everyone unhappy they were arrested and not yet prosecuted.

I never said I LIKED the bill. I have serious problems with it and have passed them on. But the dismissal section clearly says that not only must 180 days have passed, but that the indictment must have been dismissed due to absence of probable cause. It's an AND connector, not an OR. That requirement's been in the expunction law for years, they've just added the 180 days to it. The major change is with the cases that haven't yet been filed, not with the dismissals.

I agree that the intent of expunctions seems to have been lost. It was intended to protect the wrongfully arrested, not to play gotcha with the State. The wording of the statute has always been confusing and ridiculous -- it gives expunctions to those who absolutely don't deserve it on a technicality, but a lot of people who seem like they SHOULD get one aren't entitled.

And it looks like the Governor did the right thing and vetoed it.

"House Bill No. 3481 precipitates an untenable injustice to victims and a hazard to public safety."

-Governor Perry

A simpler version of HB 3481 was churning along without a hiccup after prosecutors and defense lawyers worked out a compromise on it in the House. It was a simple solution to the Beam case and related issues that did not overreach. Then TCDLA's legislative director changed the bill WITHOUT input from prosecutors at the very end of the session (and boogered it up in the process). Prosecutors never even knew the bill was going to be changed until the bill was being heard in the Senate committee charged with voting on it.

I bet that earlier bill is looking pretty good to their clients right about now.