Has this been a problem for you? Should we care? I have attached the applicable retention schedule provisions below.

The minimum times for keeping criminal records are quite lengthy under the initial provisions of the records retention schedule. They are probably adequate for most purposes. But if you look at subsection l, it allows for the destruction of clerk's records and court reporter's records just 3 years after receipt of the mandate. More than three years after the conviction, then, this can result in you having no reporter's record for purposes of defending writs of habeas corpus. You may be able to order another copy and have your county pay again (if the defendant was indigent) and the reporter has kept the original. But this subsection can create significant trouble, delay, and expense that could be avoided by simply eliminating it.

I understand under the records retention schedule, the time to keep records are minimum times and counties can agree to much longer times. The question is do you think subsection l should stand? If not, you have the ability to comment on the proposed drafts at:
http://www.tsl.state.tx.us/slrm/lgschedules/index.html


I see a potential problem should district clerk's offices (or if they reliquish their management to a record's department, record's departments) agree to be bound by the schedule rather than longer retention periods. We don't always know what clerk's offices or record's department do until after the fact, and they may not realize the significance of their actions.

If you want to hear about our local experience that lead me to make this post call me at 940-349-2600.


Part 5: Criminal Case Records
2125-01 Bail Bond Record - Record of bail or recognizance bonds set or taken. RETENTION: 3 years.

2125-02 Bench Warrants - Stub books or copies of bench warrants issued. RETENTION: 2 years.

2125-03 Capiases - Stub books or copies of capaises and summonses issued. RETENTION: 2 years.

2125-04 Criminal Bar Docket (State Bar Docket) - Docket books or sheets of criminal cases filed for the use of attorneys. RETENTION: AV. (Exempt from destruction request to the Texas State Library)

2125-05 Criminal Case Papers - Documents relating to criminal cases, including those concerning habeas corpus and extradition.


a) Misdemeanor cases, including those reduced to misdemeanor under Penal Code, Section 12.44 (except DWI and DUID). RETENTION: Date of dismissal or final judgment + 5 years, as applicable, but see retention note (g) (Records of District Clerks).

b) DWI and DUID cases. (See retention note.)


Retention Note: 5 years after dismissal or acquittal, 10 years after final judgment in convictions for a first and second offense or in convictions for a third or subsequent offense if the sentence is 2 years or less, or follow retention period under (d) if the sentence in a third or subsequent offense is more than 2 years. See also retention note (g) (Records of District Clerks).

c) Felony cases in which charges are dismissed or the defendant is found not guilty. (See retention note.)


Retention Note: 10 years after dismissal or final judgment, as applicable, except (1) if proceedings are dismissed as the result of the satisfactory completion of a term of probation under deferred adjudication, follow the retention period in (d); or (2) if the defendant is acquitted by reason of insanity follow the retention period in (g).

d) Felony cases in which the sentence (or suspended sentence), term of probation, combined sentence and term of probation, cumulative sentences or terms of probation, or the longest sentence or term of probation of two or more sentences or terms of probation to be served concurrently is more than 2 but less than 20 years. RETENTION: Final judgment + 25 years.

e) Felony cases in which the sentence, cumulative sentences, or the longest sentence of two or more sentences to be served concurrently is more than 20 years, including cases in which the sentence is life imprisonment or the death penalty. RETENTION: PERMANENT.

f) Misdemeanor or felony cases in which proceedings are discontinued for civil commitment proceedings under Section 6, Article 46.02, Code of Criminal Procedure. (See retention note.)


Retention Note: If at any time the defendant is found competent to stand trial and proceedings are continued to final judgment, follow the appropriate retention period for adjudicated cases in (a) through (f); if at any time the defendant is discharged by the court or the charges are dismissed and the defendant bound over to a court of appropriate jurisdiction for civil commitment, follow the retention period in (a) or (c), as applicable; or if the defendant is neither found competent to stand trial, discharged by the court, nor are charges against the defendant dismissed preparatory to transfer to an appropriate court for civil commitment, 50 years.

g) Felony cases in which the defendant is acquitted by reason of insanity and in which the district court retains jurisdiction of the case for civil commitment under Section 4(d), Article 46.03, Code of Criminal Procedure. (See retention note.)


Retention Note: If at any time the court finds that the person does not meet the criteria for involuntary commitment, 10 years from date of release; otherwise, 10 years after the death or discharge of the person from a mental health or mental retardation facility, if known, or if not known, 50 years after date of initial order of commitment.

h) Habeas corpus proceedings. (See retention note.)


Retention Note: 5 years from issuance or denial of writ in pre- conviction proceedings unless the court issuing the writ is the same court having jurisdiction of the offense with which the applicant is charged, in which case the records should be kept for the same period as the case papers to which they relate. Post-conviction habeas corpus proceedings records should be retained for the same period as the case papers to which they are ancillary, except if the proceedings arise from an extradition demand, the retention period under (i) should be followed.

i) Extradition proceedings. RETENTION: Date of decision on extradition demand + 5 years.

j) Exhibits. RETENTION: See retention note (i) (Records of District Clerks). (Exempt from destruction request to the Texas State Library)

*k) Bills of cost in criminal cases. RETENTION: FE of final payment + 5 years.

*l) Transcripts and statements of fact from the district court on appeal. RETENTION: Receipt of mandate + 3 years.

*m) Pre-sentence investigation reports (misdemeanors). RETENTION: Final judgment + 2 years.

*n) Pre-sentence investigation reports (felonies). RETENTION: Final judgment + 10 years.

*o) Warrants, capiases, summonses, subpoenas, witness attachments, returns, and applications for such process. RETENTION: 3 years after final judgment rendered or proceedings otherwise terminated in the case.

*p) Bail, personal, appeal, peace, cost, and other surety bonds, or certificates of deposit or affidavits in lieu thereof. RETENTION: 3 years after final judgment rendered or proceedings otherwise terminated in the case.

JAS

A better solution would be to impose a time limit on filing a writ of habeas corpus. Why should we continue waiting 10 and 15 years for a defendant to file a writ? Rarely is the wait justified, except by the defendant's boredom and denial of parole. We have a time limit for a capital writ, so why not get one for noncapital writs?

For serious felonies (sentences of 20 years or more and no appeal), I am considering having the court reporter always prepare a transcript of the plea and sentencing. That gets put in the file to await the writ, which is nearly inevitable.

The only other records that are usually needed to reply to a writ are the plea papers, which have usually been preserved by being digitized and archived. We can download those from our county database. Add an affidavit from the defense lawyer (if he is still alive) and we are usually done.

I agree with JB, a time limit should be set on all writs with a corresponding time limit set on destruction maybe one year after the habeas time limit just in case the defendant has good cause to file late. It also would get alot of writs dismissed for time limitations. I don't think there has been much backlash from the AEDPA time limit on fed habeas. When I worked at the AG's office we dismissed many fed writs as time barred.

All good points. No doubt abbreviating the time to file a writ is something else we can and should seek. In the meantime, isn't the guideline for record retention a dangerous and expensive hole into which our cases can fall.

JAS

I can't think of a single local example of how the retention schedule hurt a case. The only case in which loss of records created a problem was one in which the defendant, while his case was in trial, fled. Decades later, the court reporter destroyed her notes. Upon arrest and sentencing, the defendant gave notice of appeal. Case law suggests that defendant loses, even though the court reporter should have held on to the notes until conclusion of the case. Defendant failed to ask that the notes be preserved.

Most of the time, loss of records hurts the defendant, not the State.