Still Trying to Keep the Chronicle Honest

The Houston Chronicle, on Harris County DA Mike Anderson’s proposed new DWI deferred adjudication legislation:

Deferred adjudication is a form of probation that allows suspects who successfully complete probation to go on with their lives without a criminal conviction on their record.

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Anderson’s proposed change would allow first-time convictions for DWI to be erased from a defendant’s record, but, unlike DIVERT, prosecutors would be able to tell juries about the DWI if there are subsequent intoxication-related offenses.

The proposed change is modeled on domestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges.

Without a criminal conviction on their record” is technically true, but misleading. Lawyers who describe deferred adjudication that way to their clients and judges who do so to defendants are doing them a disservice. A deferred-adjudication probation can, in some cases and at the trial court’s discretion, be sealed from public view with an order of nondisclosure (read the statute), but unless and until the record is sealed there remains a public record of the charge, the guilty plea, and the probation. Employers and landlords and others who use background checks treat deferred-adjudication probation the same as a conviction. When a defendant is told, “you won’t have a criminal conviction on your record” he hears, “you won’t have a record.”

[E]rased from a defendant’s record” is untrue. At best a deferred-adjudication probation for DWI will, at its conclusion, be eligible for nondisclosure at the trial court’s discretion. Even if the trial court exercises this discretion the records will still be available to (in addition to criminal-justice agencies):

(1) the State Board for Educator Certification;
(2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangement;
(3) the Texas State Board of Medical Examiners;
(4) the Texas School for the Blind and Visually Impaired;
(5) the Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Youth Commission;
(11) the Department of Assistive and Rehabilitative Services;
(12) the Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Board of Nurse Examiners;
(16) a safe house providing shelter to children in harmful situations;
(17) a public or nonprofit hospital or hospital district;
(18) the Texas Juvenile Probation Commission;
(19) the securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
(20) the Texas State Board of Public Accountancy;
(21) the Texas Department of Licensing and Regulation;
(22) the Health and Human Services Commission; and
(23) the Department of Aging and Disability Services.

So if there’s any chance the defendant might want in the future to work at a school, be a volunteer firefighter, foster a child, become a security guard, or about a thousand other things, nondisclosure is nothing like erasure.

[D]omestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges” is (even apart from the wandering subject) thoroughly wrong. 

A deferred-adjudication probation for anything greater than a class-C (fine-only) misdemeanor cannot be expunged. An acquitted or dismissed case can be expunged. An expunged case cannot be used to upgrade future charges or for any other purpose.

A deferred-adjudication probation for a more serious misdemeanor or a felony may be subject to nondisclosure (not expunction), but family-violence cases are explicitly excluded. So if the change is modeled on domestic-violence laws, then more than likely deferred-adjudication probation for DWI will be coupled with an amendment to the nondisclosure law excluding DWI cases from the nondisclosure statute (so that someone with a DWI deferred will have a public record of it forever).

This stuff is not rocket science, but I haven’t found many judges or prosecutors who understand it. I don’t know why I keep expecting the Chronicle to get it right.

Does it matter? I think it does: We have a big enough problem with judges and defense lawyers telling half-truths to defendants to get them to swallow deferred-adjudication probation without the Chronicle working to make its readers (many of whom will eventually wind up guests of honor in criminal court) stupider.