Austin Attorneys & Criminal Defense Lawyers | Jail Release | Federal Defense | DWI Attorney

We wrote a couple months ago about the APD bait car fiasco. A couple – who had previously called the police about a suspicious vehicle parked in front of their house with the keys in the ignition – had been told that they shouldn’t worry about it. They decided after a few weeks to break in to make sure that there wasn’t a “body in the trunk”, because there were some pretty strange elements there, like a woman’s bikini top, men’s work boots, a length of rope, and broken glass. They investigated – remember, after the police told them that it was no big deal – and were arrested shortly thereafter. Surprise! That was a bait car! They were just trying to see who’d break the law if a car with the keys in the ignition and a heap of suspicious attributes was sitting parked in front of their house for a couple weeks!

Anyway, yesterday, all charges were dismissed in the case. The couple in question can go about their lives more-or-less the same as they did before this nonsense occurred – and it is nonsense. The “more or less” comes into play because, despite the dismissal, they do still have to pay attorney’s fees, both for defending the charge and for the expunctions that they’re now seeking in the case. And it’ll be awhile before those charges are actually expunged, so here’s hoping that neither of them need to find a new job or a place to live in the meantime. But at least we know that, if we leave our cars parked with the keys in the ignition in front of a strange house for weeks with broken glass and various items that sure make it look like maybe somebody was killed and their car was dumped, the police will – well, not actually investigate, but they’ll be happy to arrest anyone who enters the vehicle in an attempt to make sure that everything’s okay. What’s inconveniencing a couple of people to the tune of a few thousand dollars in the face of security like that?

Since Governor Perry was apparently not swayed by the Texas Legislative Council's report that suggested that he did have the power to issue posthumous pardons, State Senator Rodney Ellis submitted a request for a new Attorney General's opinion regarding whether Texas governors can grant posthumous pardons.

I look forward to reading the new AG's opinion and continue to hope that Governor Perry will bring Timothy Cole's family some peace by signing the pardon. However, the whole thing leaves me wondering what is the real motivation behind Perry's unwillingness to clear an innocent man's name? There is no fear that he is actually guilty - DNA has cleared him and the true culprit has since confessed to the rape for which Cole was wrongly convicted.

The matter makes me think of Perry's veto of the expunction bill - again, if someone isn't found guilty of committing a crime (and they don't plead guilty), why should his or her name and criminal record suggest otherwise? This is not being "tough on crime," this is being tough on the innocent.*

*and yes, I realize that some people have their cases dismissed even when factually "guilty" due to some other reason - often mitigating evidence in the interest of justice. But if we empower prosecutors to determine whether a committed crime is worth pursuing, and they decide to dismiss, then there's no functional reason to insist on waiting the full statute of limitations period.

I am still trying to recover after learning that Governor Perry vetoed some of the only good criminal justice bills that made it through the legislative gauntlet this session (after hundreds of bills died in the House due to the controversy surrounding voter ID). Few, if any, lawmakers voted against the bills that Perry killed and it is beyond frustrating that one person has this much power: I echo the sentiments of Senator Wentworth's vent:

The expunction bill would have made it easier to for those who have had their cases dismissed, or were arrested but were not charged with a crime, to expunge their records. This would have been an amazing opportunity for people who have had their cases dismissed (or not filed!) to move on with their lives without having a criminal record following them around.

Texas Criminal Defense Lawyers Association, along with many other groups, proposed the change because current law imposes lengthy time limitations (and in some case, no time limitations) on being able to file for an expunction after a case has been dismissed. For example, I have two clients that were falsely accused of sexual assault that are unable to have their records expunged under current law because there is no statute of limitations for that offense. Sorry, looks like those false sexual assault charges are going to have to follow two innocent men around at least two more years until next session! And sorry to the thousands of innocent Texans who are going to continue to be harmed with a criminal record that will make it even harder for them in these tough economic times to find jobs, housing, etc.

And Governor Perry's official veto statement as to why he vetoed a bill that had bi-partisan support and passed unanimously out of the House and Senate is nonsensical: "Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely." What??? Expunction statutes have never and would never be used as a means of discovery - what we want when we are seeking to expunge records is a destruction of those records, not a request to get offense reports. In addition, prosecutors must only have probable cause to file formal charges against someone - and every defense attorney knows how difficult a time a prosecutor has persuading a grand jury on that!

The sex offender de-registration bill was a very narrowly tailored bill that would have offered some relief to young "offenders" who could petition the court for an exemption from life-time sex offender registration for consensual sexual activities if they were within four years of the "victim." Under current law, a 17 1/2-year old who has consensual sex with his 14-year old girlfriend (or a 19 year old with a 15 year old or a 20 year old with a 16 year old) is guilty of sexual assault. That person, if convicted, has to register as a sex offender for life just the same as someone who commits rape or makes child pornography.

What we are talking about here under this bill would have been to allow those teenagers in "Romeo and Juilet" situations to petition the court (and this would have been permissive - not mandatory) to excuse them from a lifetime of sex offender registration for consensual sex as long as they were within four years of the "victim". (And as long as the "victim" was 14 or older.)

And Perry's reason for the veto: "I believe the bill fails to adequately protect young victims." First, the "young victims" Perry refers to are the teenagers who had consensual sex with partners four years older than they were - how does not making those "offenders" register for life in the same way that dangerous predators do "fail to adequately protect" them? Got me. And more importantly, what about the "young victims" out there that will be harmed because our limited public safety resources will be diverted and wasted on monitoring thousands of people on the sex offender registry that pose absolutely no public safety threat? (Not to mention those "young victims" - the "offenders" - who now have no relief from a life-time of living publicly as a sex offender.)

You can probably guess that I am not normally a huge Republican backer, but here's to Kay Bailey Hutchison (or really, anyone but Perry... ANYONE - Kinky Friedman? Leslie Cochrane? Kermit the Frog?) for 2010.

Update 6-22-09: Sadly, HB 3481 was vetoed Friday by Governor Perry. Texas expunction law will continue to be outlined as it is here. The original post is below.

There’s a common misconception out there that once a person's case is dismissed, it'll no longer be on their record. Unfortunately, it's a little more complicated than that.

People who've been wrongfully accused, or who've have had their charges dismissed as part of a plea agreement, or who've been acquitted at trial - unless they take an active step to have their records expunged, that arrest will remain on their record for anyone to see for the rest of their life.

Moreover, unless they expunge their record, they must always answer "yes" to the question "have you ever been arrested" - which appears on job applications, bank forms, school and rental applications, and more. There are a number of companies that do nothing but collect and disseminate criminal records, and they make a lot of money trying to make sure that the arrest can follow you indefinitely.
That's where an expunction comes in. The statute in Texas has always allowed those who meet certain criteria to receive an expunction - in which the court destroys all record of the arrest and which allows the client to legally answer the question "have you ever been arrested" with a "no" - but the state has also imposed tight restrictions and required long time limits for elibility.

This is a huge burden for those needing to move on with their lives. I'm one of the lobbyists for Texas Criminal Defense Lawyers Association, along with S&G's David Gonzalez, as well as Keith Hampton and Allen Place, and we've been working during the 81st Legislative Session to help alleviate that burden. The bill we helped to draft, HB 3481, passed the House and Senate and was sent to Governor Perry on June 3. HB 3481 eliminates the current waiting period - in most misdemeanor cases two years, and in most felonies three, with some never being eligible - and replaces it with much more reasonable time periods. For unfiled misdemeanors and unfiled or dismissed felonies, a person will be eligible six months after an arrest. For dismissed misdemeanors, a person will be eligible immediately. The bill also eliminates the requirement that the person in question have no other conviction within five years preceding the date of arrest.

We're really optimistic that this will make a big difference in people's lives. Now we're just waiting on Governor Perry. If all goes well, this will go to law and be effective immediately.

(image via EssG's flickr)