Officer was indicted for Asst FV against adult step son, GJ refused to indict him for choking. Due to cooperation issues with victim, we pled down to class C disorderly and gave him a deferred. He has since had case expunged, but now the issue is he is still listed in several reports. We're not going to sponsor him as a witness as we believe he committed a felony offense. Since the arrest and plea have now been expunged, are we probhibited from disclosing any information about the case as Brady evidence? Is it even brady if he pled to the lesser which is not admissible for impeachment since it is not a felony and it is male on male therefore not CMT?

I was provided the following information regarding expunction an information still being available:
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.

This information was also provided...Hope it helps:
Take a look at Art. 55.02, Sec. 5(a), which talks about how the agencies actually have to comply with an expunction. It directs the agencies to either return all records to the District Clerk or "obliterate all portions of the record or file that identify the person who is the subject of the arrest." Sec.5(g) also specifically authorizes agencies to retain receipts, invoices, and other financial information so long as it obliterates all portions of the record that identify the person who is the subject of the expunction order. So as long as whatever portions of the record you still have can't in any way be connected back to the petitioner, then you are fine to keep the redacted copies.

In response to your clarification issue about a person who commits multiple crimes, you might want to look at 55.02 sec.4. That section has various options for obtaining an exception in your expunction order if the records and files are still needed for the prosecution of another case.

Your records and files about the arrest must be expunged, and you're prohibited from using any of that information, including by disclosing it to the defense. The statute doesn't require amnesia, so your office can still certainly have a policy that you believe the officer is not credible and you will not sponsor him as a witness, you just can't release any of the information that led to that conclusion.

One loophole you may be able to use is that expunctions are concerned with records from "the arrest." If there was an investigation before the officer was arrested, that technically doesn't have to be expunged. Most agencies expunge the whole file, but you only have to expunge things arising out of the arrest. That would give you something to disclose to the defense

Thank you both.

what grounds was an expunction granted on and how

Expunction is a purely statutory construct. The offense of Violation of Expunction Order is not a natural crime. It is a class B and not even in the Penal Code.

Meanwhile, the Brady disclosure requirements are based on the defendant's rights under the US Constitution. Violation of these rights can overturn a murder conviction.

Finally, under 39.14(h) of the Michael Morton Act, impeachment evidence must be turned over even if it is privileged ... and privileged is a higher level of protection than confidential.

Food for thought.

quote:

Originally posted by James:
what grounds was an expunction granted on and how

A Class C deferred can be expunged after the expiration of the statute of limitations. The only other requirements after the SOL has run are that the case is no longer pending, there was no conviction, and there was no community supervision other than for a Class C misdemeanor.