The phrase "Catch 22" seems to apply to expunctions. With exceptions for aquittals and misidentifications, the law seems to prohibit the maintenance of an index of expunctions by a prosecutor's office, a county clerk's office, a district clerk's office, or any other government office listed in the expunction statute that is named in an order of expunction. The index that I am imagining would have no names or identifying information of persons whose cases had been expunged, but would consist of a list of cause numbers or law enforcement service numbers of cases for which there were final orders of expunction. Such a list would serve as a tool to comply with the expunction statutes, but would not reveal who had expunged cases. Otherwise, how is a government office to know whether a case was expunged other than by institutional memory? You have to know a case was expunged in order to destroy any record you may come upon or to not reveal information about it. If I am wrong about the law prohibiting such an index, please let me know. Thank you all in advance.

I know several offices maintain an index for just such occasions. It is kept internally, and noone outside the office is allowed to see it. I don't know if the law prohibits it any more than reliance on institutional memory, and, as it is never released to the public (the whole point behind expunctions) or used in any way in subsequent criminal prosecutions, then it may be okay.

W.V. vs. State, 669 S.W. 2d 376 (Tex.App. 5 Dist. 1984) (Isn't that yuor Court, Ben?) is the only case I could find. The statute does NOT allow for an index in the PUBLIC records, but internal attorney work product?

Glad I could help after all these years......

The statute's been revised since 1984, unfortunately. It now prohibits the use or maintenance of expunged files, which I believe squarely covers even an internal index of expunctions. This is a big flaw in the system that I've noticed and think needs to be amended. (But there are so many other problems with that statute, who can count? )

I've had calls from people saying "I got an expunction 5 years ago, but it's still showing up at XYZ. Can I get a copy of my order?" And I have to explain that I don't have a copy of the order and I couldn't release it if I did, or even tell the other agency that there WAS an expunction if I happen to remember it. It's a bad system. I always warn petitioners or their attorneys that the petitioner needs to keep a copy of the expunction order forever. It's the only way to be sure.

Well, this is interesting. My feeling was that internal indexes would violate the statute, but it just seemed like an absurd result. With all due respect to MDK, I'm going with AndreaW, one of the co-authors of the TDCAA book on expunctions. I am ashamed to admit that I have not bought the book yet, but I intend to. I figure I can pick up a copy at the annual meeting in January and save the shipping.

Thank you.

Andrea, where is the harm in an entry that an expunction order was entered in Cause No. 1234? Without reference to the defendant or any details of the original charge that seems pretty inoffensive to me. How else will you ever know how to respond when someone asks for info about that file?

What file?

Didn't the clerks get an amendment passed that allows them to keep financial records related to expunctions? Maybe that could be used as a reference.

Martin, if someone asks for information about an expunged file, I would look it up and then truthfully say I don't have any record of it. I don't think there's any harm in keeping an index either, but the statute doesn't allow us to.

Shannon, you're right, that's from Article 55.02, section 5(g), added just this last session. That could be a good starting point for new language. Maybe I need to work on something.