I have a Writ of Habeas Corpus that asserts that Defendant should be released because the alleged criminal offense for which his parole was revoked has been dismissed and EXPUNGED from his record. He has attached the Order of Expunction to his Writ. He claims that his parole was revoked solely on the new alleged criminal offense.

Assuming that I am able to verify that all of the above is true....Have any of you dealt with this sort of situation before? A quick search of LEXIS produced nothing of this sort.

Never encountered this problem. I suppose the expunction was improperly granted and, with it, all records disposed. We have had occasion to obtain orders from trial courts to prevent temporarily the clerk destroying everything before the one year deadline for destruction ran--usually to investigate related wrongdoings. I suspect, and hope for you, that the expunction is a fraud. Otherwise, the mistaken expunction may well fatally hinder you.

A glimmer of hope, though. Often the defense does not obtain a complete expunction due to their failure to list all those people holding records. You may consider this avenue to obtain records so that you can prove the expunction was improper and to uphold the revocation.

[This message was edited by John Stride on 08-14-06 at .]

So what if the records were expunged? That doesn't mean the defendant didn't commit the conduct that created the records.

The situation certainly points out the absurdity of the expunction laws, which have been twisted far beyond their original intent -- which was to remove arrest records from innocent persons files.

I don't see why the State has to do anything about the writ. The absence of records doesn't prove anything. Someone already litigated whether the defendant's parole should be revoked. An expunction doesn't relitigate that issue; and it doesn't establish innocence, only that a defendant presumably met the standards of the expunction law.

And, my experience has been that many defendants file expunction petitions that don't even come close to meeting the law. But, if no one opposes it, and if the judge doesn't bother to read it and the expunction law, orders just get signed.

Just look at the history of DPS appeals of expunction orders. DPS has an excellent record of reversing the trial court's order.

John Bradley
District Attorney
Williamson County, Texas

Why even refer to it as an "alleged" offense. Presumably there was a revocation hearing at which some proof of the violation was presented and the recommendations/findings of the hearing officer were then approved (adjudicated) by the Board. If not, then that should be the basis for the requested relief- not some order for expunction of records of an arrest. Without an alleged violation of a right under Morrisey, there is no allegation of illegal restraint. Cf. Catham, 59 S.W.3d 677.

The only thing expunged is the arrest itself and any records generated from that. If your revocation hearing consisted of someone actually testifying about the new offense, then the expunction doesn't affect you at all. (If somehow it was just introducing the arrest report, it might be more complicated, but I think you're still fine.)

John,

You make an excellent point. Far too many expunctions are sought without a proper basis. We diligently scrutinize and oppose any non-conforming requests and also appeal any improper grants.

I also agree that the State should prevail on the writ since the burden is plainly on the applicant. All the same, I would want to have some paperwork to support the underlying conviction and revocation. Maybe it is overkill (in a good court) but I would want to end the battle right there. A "cautious" trial court could certainly mess up things.

[This message was edited by John Stride on 08-15-06 at .]

There should be a tape recording of the hearing held by the parole officer, leading to the recommendation for revocation. That would contain the information used to revoke, not the expunged records.

I would be more curious about whether defendant presented false information to obtain an expunction. Didn't some prosecutor review those pleadings?

John Bradley
District Attorney
Williamson County, Texas

I agree that an expunged conviction will not necessarily be fatal to the revocation.

But, really all the answers will be with the the TDCJ - parole division and the Board of Pardons and Paroles. In addition to verifying the expunction, you'll want information such as when the blue warrant issued based on the new offense, what all was alleged, the hearings he had, whether he has exhausted the parole rehearing process, etc.

Unfortunately, 11.07 places the fact-finding forum in the county with the conviction, even though often none of the relevant facts occurred anywhere nearby. I do have a couple of contacts that can help you figure out the real story if you'd like. 972-548-4729

Thanks for all of your thoughts. They are well-taken, and I will run with them.

I am currently working to get all of the information you mentioned from TDCJ, as well as digging up the expunction documents from Jefferson County.

The defense may be planning a collateral estoppel argument based on the expunction judgment, which probably contains a finding that there was a mistake, false information, or absence of probable cause as set out in CCP Chapter 55.

The Writ was filed Pro Se by the inmate. I'm interested in finding out if he could have possibly handled the expunction the same way.

In our experience (we have a small section devoted to opposing expunctions), a lot of these are granted without the required notice or hearing. So a lot of the appeals DPS files are limited appeals because they are filed out of time since we either were not served with the petition, or did not get notice of the hearing. If this man's record was ordered expunged, he may not have given the required notice.

Janette Ansolabehere

The Parole Division, upon me contacting them and requesting documentation regarding the parole revocation to respond to the inmate's writ, has decided that his claim is valid and is pushing through a special review of his parole revocation so that it can be reversed and he can be released. No documentation will be forwarded to me until he is released and they can send me an affidavit to that affect.

Glad to hear that the claim will end up as moot.

And you generated some interesing discussion.