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.

* * * * *

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.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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15 Responses to Still Trying to Keep the Chronicle Honest

  1. Mike Paar says:

    Pardon me, but I believe the legislature passed a law last session that allows the governor to expunge even felony cases if the defendant successfully completes their probation. I remember it well because Judge Edwards in over Montgomery county (Former judge, now) was complaining about it because the new legislation left the judges out of the loop and he hated not having a say about “one of his cases”. I’m almost certain that this bill passed but couldn’t find anything about it online. If it did indeed pass, and the governor expunged the records of DWI defendants here in Harris county, how would this then affect Anderson’s new plans?

    • Mark Bennett says:

      Between the fact that you can’t find anything about it online, the fact that I’ve never heard of it, and the fact that you heard about it from Fredwards, I’m thinking it’s apocryphal.

      • Mike Paar says:

        I found it. I was a bit off with the time. It passed in 2011. http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=SJR9

      • You were right with the time (2011 was the last legislative session, unless you want to be pedantic and call 82(R) a separate session from 82(1)) but wrong with the substance.

        SJR9 proposed an amendment to the Texas Constitution allowing the Governor to pardon someone who had successfully completed deferred. Prior law had allowed a person who had been convicted to get a pardon, but not a person who had successfully completed deferred.

        SJR9 just says that someone who successfully completes deferred can seek a pardon like someone who has a final conviction.

        When a person has been pardoned, he can seek expunction (still in the district court; the governor can pardon but can’t expunge) but pardons are rare as hens’ teeth.

      • Mike Paar says:

        I would predict that pardons will become less rare if Anderson is successful in his bid to change the law. Especially for those upstanding republicans who generously donate to Perry’s campaigns…

      • Why? The governor isn’t pardoning people convicted of DWI, and he’s always been able to do that.

  2. Not to mention, that a plea of Guilty or Nolo Contendere by any other name is still a conviction for federal criminal law and immigration purposes. (At least in the 11th Circuit.)

  3. Matthew Dexter says:

    Thank you. You explained that very well. I was not aware of that subtle distinction.

  4. Thomas Stephenson says:

    Right. Only purpose of deferred adjudication is so that the state can get more pleas by letting “plea-and-flee” lawyers sell their clients on the idea that it’s not a conviction.

    But if the non-conviction can still be used as an enhancement on a subsequent DWI charge, I’m at a loss to figure out any actual differences between that and regular probation. It’s quite literally the same damn thing. In fact, in felony cases deferred can actually be worse — on a 2-to-20 felony the entire range of punishment is available on a motion to adjudicate, while on standard probation the plea agreement can essentially lock in less than the maximum punishment allowed.

  5. Marc Meyer says:

    Yup. I’m developing quite a nice practice dealing with the collateral consequences of the plee-and-flee lawyers advising healthcare providers to take those deferred adjudication pleas. As an interesting side note, I’ve dealt with three clients in the past year who were given deferred adjudications on state jail felony DWI’s (I dealt with the license issues post deferred). Interesting how that happens . . . .

    But more interesting (to me, at least) is the treatment of pre-trial diversions by some state agencies. I had a case earlier this year where a judge (well, an ALJ) who ruled that a pre-trial diversion (Federal, but the concept is the same) was the same as a deferred adjudication for the purposes of disciplining a license. Clients license was revoked because of the ruling when there should have been no discipline because that is not within the agencies authority. I would have appealed the agency decision . . . if the client ever paid me more than the initial retainer.

    Thank you for letting the\is administrative law interloper vent a little on a common area of frustration . . .

  6. George Byrd says:

    Mark Bennett wrote:

    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.

    As Upton Sinclair famously noted, “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”

  7. Mr. B., the history books don’t teach it but Daniel R. Jackson is the inventor of the Plea & Flee concept. According to the Harris County District clerk’s website (regarding Motions filed over an entrie carear, he is also the first Divorce / Estate specialist to be allowed to dabble in criminal law for ‘One’ felony case (jury trial) that he himself stopped at lunch recess with one final statement.

    “Guilty or Not, you are going to prison just for being arrested while on (adult defer adj.) Probation. It was revoked just for being arrested. Take the 10 years, get out in 3 and get on with your life.” Any attorney / lawyer knows this is a lie. Probationers’ with one foot in & one out deserve to be advised truthfully. If this was true, why wait til day one of a jury trial. Certainly the Judge, ADA and Probation Officer knew it. Sadly Bush’s & Perry’s Clemency Section(s) don’t see it that way. If you want a Full Pardon – for innocence regarding a case that was TappedOut (forgetaboutit).

    We can only hope & pray that Mr. Anderson doesn’t allow his Team’s wins to be derived from TapOuts derived from dabbling liars with un-criminal law degrees. Maybe he’ll form TapOut Courts for the Guilty pleas and the Non-Defenders alike, allowing Real Courts to be utililized by Not Guilty pleas & professionals only. Thanks.

  8. Happy New Year Mark!

    Thanks for the simple explanation of the difference between expungement and sealing/non-disclosure…not to mention the practical similarities between conviction and deferred adjudication.

    Some states forbid employers and others to ask about any criminal records which have been either expunged or sealed. Others – and I believe this includes Texas – only specifically exempt expunged records. In the latter, are sealed records are still fair game for employers and others to ask about (and, presumably, expect a full and truthful answer)?

    Cheers,

    Jeff Deutsch

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