The Governor’s reason for vetoing the expunction bill:
House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses.
Actually, those statutory provisions were not put in place to deny folks the opportunity to expunge dismissed cases. It was the activist (as well as 100% Republican) Texas Supreme Court decision, State v. Beam, that incorrectly interpreted the legislature’s 2001 amendment’s to Code of Criminal Procedure Chapter 55.01 dealing with expunctions.
That’s OK. Sometimes courts misunderstand the legislature’s intent. I really don’t have a problem with that – as a general rule. It’s bound to happen. After all, the legislature can fix the misunderstanding when it meets again. In Texas, that’s only every two years, but hey, Texans are never in more danger than when the legislature is in session, so the less often we allow those politicians to gather, the less frequently they will do us any harm.
But in this case, the legislature wanted to send a very clear message to the Court that it had gotten it upside down. So, they wrote, debated, amended and variously fussed over House Bill 3481, to remedy the Court’s unintentional error in interpreting their will.
What was it that the legislature wanted to fix? The Court’s decision that folks have to wait the statute of limitations before expunging a dismissed case. Heck, the bill analysis let’s us know what they meant this time around:
One result from the Texas Supreme Court’s ruling in State v. Beam, 226 S.W.3d 392 (Sup. 2007), was an interpretation that even if a criminal indictment was dismissed or quashed because of a mistake, false information or lack of probable cause, a defendant had to wait for the statute of limitations to run out before getting an expunction.
That’s right. After Beam, it no longer even mattered why the case was being dismissed. Accidental indictment? False information, i.e., the D.A. determines the complaining witness is a lying sack of ****? Not even probable cause to arrest? Tough luck. No expunction until the statute of limitations has passed.
Doesn’t particularly help a person wrongly indicted for murder, which has no limitations period. And, more commonly, the misdemeanor defendant whose lawyer convinces the County Attorney to dismiss? Has to wait two years until after that dismissal. Even in cases where the prosecutor has voluntarily agreed to dismiss.
(For unimportant technical reasons, folks usually will wait slightly less than two years after the dismissal before eligibility for an expunction in a misdemeanor. Short version: the statute is running in between the time of the arrest and the time of the filing of an information. So however long it took the prosecutor to officially file charges at the County Clerk’s office can be subtracted from the “date of dismissal + 2 years” formula. I say it’s unimportant to this post, but in some cases that can substantially shorten the waiting period.)
But, back to the point at hand, here is the legislature saying, in no uncertain terms, that making a person wait to erase their criminal arrest record for any amount of time when they have been wrongly accused is… well, it ain’t what they meant. And it’s ridiculous to boot.
Bill analyses, in an apparent attempt to compete with Fix News in the “fiar and balanced” department, always include a section about what opponents to the bill say. Sure, it ended up passing unanimously, but here’s what a hypothetical opponent might have said, according to the House:
The state should not limit the public’s access to records of indictments by changing the effect of the Supreme Court’s ruling. Currently, those whose indictments were quashed or dismissed due to mistake, false information, or lack of probable cause can have their records expunged after the reasonable requirement that they wait for the statute of limitations to run out.
So imaginary critics of the then-proposed-but-not-yet-unanimously-approved HB3481 would say, if they existed, “Un-unh”. (How does one spell that?) They went on to add:
This allows the public appropriate access the criminal records while persons are still subject to prosecution for a crime.
True. Voting against this bill would allow the public to access arrest records of persons who… should never have been arrested in the first place. If that’s the best reason not to vote for the bill, no wonder it passed.
But Perry vetoed it anyway. And what’s he got to say for himself? Well, he couldn’t let it become law, because:
[I]n its final form, it would have done more harm than good to our citizens.
What an idiot.