Ever had a DWI defendant who had a prior DWI older than 10 years?

Of course, everybody has.

What about an Assault Family Violence 2nd offender, where the prior conviction was more than 5 years old?

Again, everybody has.

What about a dangerous criminal who has a felony probation older than 25 years?

Not as common, but everyone has.

I just learned today that County and District Clerks are allowed to destroy such records under the Texas State Library & Archives Commission destruction schedules.

Under the schedule for County Clerks, they may destroy all misd. convictions 5 years after judgment, except for DWI's, which must be kept 10 years.

Luckily, the time frame for felonies is a lot longer. For Dist. Clerks, they can destroy plea records for those who get 20 or less years after 25 years, and if the def. got over 20 years, the records must be kept permanently. However, if a case is reduced to a misd. under PC 12.44, it can be destroyed after 5 years, unless it is a DWI, in which case it can be destroyed after 10 years.

Luckily for the people of the Great State, most clerks are not very diligent in destroying their records as soon as the law provides. If they were, lots of DWI defendants would never be prosecuted as felonies, and lots of wife-beaters would never make it into district court.

I hope every prosecutor who thinks criminals should be held accountable for their past criminal behavior sends a letter to the Director & Librarian, Texas State Library & Archives Commission, fax (512) 463-5460; PO Box 12927, Austin, Tex. 78711, or by e-mail by going to the "Comments" section of their websiteState Library & Archives Commission

You can find what I'm talking about under Local Government Schedules.

I'm getting ready for an Agg. Sex. Asslt. of Child trial, and I learned today that my loser's 21 year old Class A Asslt. conviction papers have been tossed out, with the blessing of the State Library & Archives Commission. In my view, all Class B misd. and higher convictions should be kept on record for at least 50 years.

I hope a ton of prosecutors (and the MADD Mothers, and other victims' groups) let the State Librarian know that these schedules are bad news.

In many places, though, the original records were scanned and are available through microfiche or in some digital form that can be printed out and certified. Did you check on that?

I had a DWI case a couple of years ago. The CCH showed two prior DWI convictions in two other counties. The first county sent us the records. When we called the clerk's office in the second county we were told that all records from that case had been destroyed. I asked if they had been microfilmed or scanned and they said no. The case that was destroyed was less than ten years old.

I would suggest that you consult with your clerk's offices and see what they do. These are only recommendations.

[This message was edited by John B. Lyons on 01-31-08 at .]

That sure seems wrong. Terribly wrong.

Apparently, the State Library & Archive Commission's schedules set the minimum time county and district clerks have to keep certain records. They do not specify what medium the records are kept in. Those clerk's offices that reduce their records to some digital recording, probably don't destroy their records after the minimum time.

From my experience in ordering prior convictions, it is apparent that most clerk's offices keep their conviction records far longer than what is required by law. But they are not required to keep records in any media after the schedule dates. And that is crazy. The whole purpose of having a clerk's office, is to keep records on file for when they may be needed, and misdemeanor convictions are frequently needed way after the 5 and 10 year minimum storage times required by the commission. Felony probation plea papers are also sometimes needed more than 25 years after the plea.

TDCJ keeps pen packets going way back.

I went to the comments section referred to above and posted the following comment:

The schedule for Record Number 1600-04a, Criminal Case Papers, DWI and DUID cases, is severely inadequate.

The 2005 legislature changed the law to delete the requirement that prior DWI convictions must have occurred within 10 years.

If someone arrested for DWI today had a DWI conviction in 1970 and 1975, he could be charged with a DWI 3rd and, as prosecuting attorney, I would have the burdern to prove his prior convictions. I would need certified copies of the previous judgments to do so. Allowing clerks to destroy these records thwarts the will of the legislature. This schedule must be lengthened. Otherwise, you will be sanctioning lesser punishments for drunk drivers.

I gave a presentation this month to the District and County Clerks Association regarding laws on the destruction of evidence.

I know that organization would be very interested in hearing our thoughts on this issue, and I know Ken is very capable of communicating our concerns about judgements and their retention. I've emailed you, Ken, and would be happy to provide the contact information for their association if you are interested.

https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=6050918821&m=4381054651

JAS

Greg, I'm interested. Let me know what I need to do.