To Whom It May Concern:

We have an issue in our County that seems to be avoiding a clear answer. For many years defendants placed on pretrial diversions contracts in Wichita County have been supervised by the CSCD (probation office). Upon completing the terms of the pretrial diversion, many of these defendants have their records expunged under 55.01(a)(2) (case law holds that pretrial diversions are not �community supervision� as to disqualify someone for an expunction.)

However, though CSCD is involved in all of these cases, many times they are not listed on the order of expunction, and only becomes aware of the expunction because of the sheriff sending a letter. The judges in this county have advised that CSCD should not destroy its records unless it is listed on the order. However, CSCD and our office is concerned as to liability for maintaining or using the records under CCP 55.04.

The issue is: How does 55.03 and 55.04 of the Code of Criminal Procedure apply to a governmental entity that is not listed in an expunction order, yet receives knowledge of the order and has files that would be subject to the expunction? The general counsel for the Department of Criminal Justice has been unable to answer this question, and we are considering seeking an AG opinion.

Thank you for any help you may provide.

Sincerely.

Bryce Perry
Asst.Criminal District Attorney
Wichita County, Texas
(940) 766-8113

Three observations:

(1) Note that Article 55.03(1) is written in the passive voice, without specifically identifying who is prohibited against "release, maintenance, dissemination or use of the expunged records and files for any purpose." This construction is distinguishable from Sections 5(a) and (f) of Article 55.02, which place the duty of returning files and deleting records specifically on "each official or agency or other entity named in the order."

Arguably, the difference between the two statutory constructs rests in their interactions with the court. In both Article 55.03(1) and 55.02(5)(a), you have to get rid of the records, but only if you are a named respondent do you have to return the records to the court.

(2) Article 55.04(1) similarly doesn't require the "person who acquires knowledge of an arrest" to be named in the expunction order to be criminally liable; it simply requires the state to prove that the person "knows of an order expunging the records and files relating to that arrest." I'm thinking the original intent of that broad statutory language was to prevent loopholes (e.g. employee X (who is not the recipient of the expunction order or the department head) uses expunged records and defends himself by claiming that he is not the named department head and that an order against his parent agency does not apply to him personally).

In your situation, the custodian of the probation records would have to admit that he or she "knows of an order expunging the records and files relating to that arrest" and that he or she is nonetheless "using" the records (although note that "maintenance" is expressly forbidden in Article 55.03(1), but not in Article 55.04(1)).

(3) Article 55.04(2), on the other hand, does not seem to apply to a person or entity not named in the order because it criminalizes the failure "to return or to obliterate identifying portions or a record or file expunged under this chapter." The duty to return or obliterate, as discussed above, is only imposed on officials, agencies or other entities "named in the order."

I hope that helps. An AG opinion might be useful, however.

Check out City of Ft. Worth v. Tuckness, 165 S.W.3d 425, 428 (Tex. App.--Fort Worth 2005, no pet.). They cover the issue in pretty extensive detail. The basic summary -- if the agency isn't listed in the expunction order, they are not required to return or otherwise destroy their records. They are prohibited from disseminating or using the records.

There's also an AG's opinion roughly on point: Tex. Atty. Gen. Op. LO-93-88. It held that TDPRS was not required to expunge its records if it was not named in the expunction order, but it was prohibited from disseminating or using the information under 55.03(1), as Scott already discussed.

Hope this helps!

[This message was edited by Andrea Westerfeld on 05-17-06 at .]

Scott and Andrea -- thanks for your help.

The problem I am having in construing the statute is the same problem that Scott is having. Both the case and the AG Opinion that Andrea cite are apparently based on an earlier version of 55.03(1) that only precluded "release , dissemination, or use." Since then, the word "maintenance" has been added to that section. I think that this may change the result of both of those opinions (that the agency did not have to destroy but could not use), to require an agency who isn't listed in the order to nonetheless destroy it, though possibly not in the same procedure as described in 55.04(2)and 55.02 (5).

But, in doing this, the spirit of 55.04 would seem to be violated, since that section distinguishes between an agency in the order and one that knows of the order.

Sections 55.03(1) and 55.04(1) therefore seem to be in conflict. And while it would seem to be the cautious act to tell these agencies not listed in the order to destroy the records, that action might run afoul of the Open Records Act, section 12.

Any further assistance would be greatly appreciated.

I have a situation where an expunction has been granted for a county court misdemeanor case, but the attorney for the defendant failed to name the County Clerk in the petition or order of expunction.

I do not understand how Sections 55.03(1) and 55.04(1) are in conflict. 55.03(1) deals with the "expunged records". If the clerk's records were not ordered expunged, how could they qualify as "expunged records" under 55.03(1)? Under 55.04(1) you must prove that the violation was done knowingly. In my case, the clerk has no knowledge of the order of expunction.

Ken,

I think that is a good thought, except that the case and AG opinion mentioned above specifically do apply 55.03(1) to entities not named in the order. The question then is how those opinions, which said that the entities were not required/authorized to destroy the records but could nonetheless not use them, have changed since 55.03(1) was amended to preclude "maintenance."

The AG's opinion is only a letter opinion and the Fort Worth case involved an issue of standing to contest the expunction order. I think both opinions are wrong as they relate to an entity not named in the petition and order of expunction. If the actual records in the clerk's custody were not ordered expunged, then they do not qualify as "expunged records". As the saying goes, I guess I will need to make some new law. The real issue is the legal malpractice of the petitioner's attorney who failed to name all the correct entities.