In re State Bar of Tex.

Decision Date22 August 2014
Docket NumberNo. 13–0161.,13–0161.
Citation440 S.W.3d 621
PartiesIn re The STATE BAR OF TEXAS.
CourtTexas Supreme Court

Gregory Max Hasley, Jennifer A. Hasley, Hasley Scarano, L.L.P., Houston, TX, for Other interested party Jon L. Hall.

Barry C. Willey, Donald S. Glywasky, Jack Duane Roady, Galveston County Crim. Dist., Galveston, TX, for Other Interested Party Jack Roady.

Christopher L. Tritico, Lloyd James Krell, Ron S. Rainey, Tritico Rainey PLLC, Houston, TX, for Other interested party Vikram Vu.

Taft Foley, The Foley Law Firm, Houston, TX, for Real Party in Interest Joshua Bledsoe.

Cynthia Canfield Hamilton, Senior Appellate Disciplinary Counsel, Laura Kathryn Bayouth, Linda A. Acevedo, Office of the Chief Disciplinary Council, Austin, TX, for Relator State Bar of Texas.

Opinion

Justice DEVINE delivered the opinion of the Court, in which Chief Justice HECHT, Justice GREEN, Justice JOHNSON, Justice GUZMAN, Justice LEHRMANN, and Justice BROWN joined.

A person wrongfully arrested for a crime “is entitled to have all records and files relating to the arrest” expunged, if certain conditions are met. Tex.Code Crim. Proc. art. 55.01(a). One such condition is an acquittal. Id. art. 55.01(a)(1)(A). The statute thus serves to protect wrongfully-accused people by eradicating their arrest records.

In this original mandamus proceeding, the Commission for Lawyer Discipline complains that a former prosecutor, facing allegations of prosecutorial misconduct, has used an expunction order to block the Commission's prosecution. A district court has refused the Commission access to expunged criminal records for use in the disciplinary proceeding against the former prosecutor and has ordered the Commission to turn over investigative records. The grievance panel in the collateral disciplinary proceeding has construed the district court's actions as a bar to the disciplinary proceeding and granted the former prosecutor's summary judgment motion. Because we conclude that the expungement order does not bar the Commission from using records from the criminal trial in the grievance proceeding, we conditionally grant the writ.

I

This mandamus relates to a disciplinary proceeding against former prosecutor Jon L. Hall, who allegedly suppressed exculpatory evidence in an aggravated robbery prosecution. The Commission's involvement began in November 2011, when it received a news article about the aggravated robbery trial. The article reported that Joshua Bledsoe was acquitted because the prosecutor suppressed exculpatory evidence.

The Commission began by interviewing, among others familiar with the case, the judge who presided over the trial and the attorney who represented Bledsoe. Shortly thereafter, the Commission anonymously received a partial trial transcript that included discussions between the trial judge and counsel regarding the prosecution's suppression of evidence, including a 911 tape.

In that tape, the robbery victim made statements that she later contradicted during trial. At trial, the victim identified Bledsoe as one of the robbers based partially on his race, but in the 911 call, the same witness claimed that she could not provide any description of the robbers, including race, because they wore masks.

Following its investigation, the Commission commenced a disciplinary action against Hall, the lead prosecutor in the aggravated robbery case, and Vikram Vij, an assistant prosecutor. The Commission subsequently dismissed the action against Vij. Hall elected to have his disciplinary action proceed before a grievance panel rather than in district court.

In answer to the Commission's evidentiary petition, Hall complained that he did not have access to records necessary to his defense because all records from the aggravated robbery case had been expunged. After receiving Hall's answer, the Commission, with Bledsoe's consent, filed a motion in the trial court that had presided over the criminal prosecution and signed the expunction order. The motion sought access to the expunged records for use in the pending disciplinary action. Although Hall had complained about not having access to the criminal-case records, he nevertheless responded to the Commission's motion by urging the trial court to deny access to the expunged records.

The Commission's motion was assigned to a visiting judge, sitting by assignment for the trial court. Following a hearing, the visiting judge concluded that the underlying expunction order precluded the Commission from relying on any of the expunged records and ordered the Commission to turn over all information in its possession related to Bledsoe's arrest, including the partial trial transcript. The order also barred for any purpose “any document or other evidence derived from the underlying criminal case and subject to the District Court's expunction order or derived from the arrest of J.B. and subject to the District Court's expunction order.”

Meanwhile, in response to Hall's requests, the grievance panel chair ordered restrictions on the Commission's discovery in the disciplinary action. The order recited that the Commission could not acquire or use any documents or other evidence related to the underlying criminal case and expungement order until the trial court amended the expungement, if it did. Hall subsequently moved to strike the evidentiary petition, to dismiss the disciplinary proceeding, and for summary judgment. The Commission sought a stay so that it could seek relief from the trial court's order. The grievance panel denied the Commission's stay request and, based on the trial court's order, granted Hall's summary judgment motion.

The Commission has appealed the panel's summary judgment to the Board of Disciplinary Appeals and has sought review of the trial court's order in the court of appeals. The Commission advises that both reviews have been stayed, pending our review of the Commission's petition for writ of mandamus.

The Commission submits that mandamus relief in this Court is appropriate because the court of appeals cannot redress the ultimate consequence of the trial court's order—the dismissal of the Commission's disciplinary action. That dismissal can only be challenged in a separate appeal to the Board of Disciplinary Appeals. The Commission submits that the attendant risk of conflicting appellate decisions that can only be reconciled in this Court suggests the present mandamus as the appropriate remedy. See, e.g., In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex.2003) (concluding that mandamus was the appropriate remedy to correct district court's interference in the regulation of the legal practice). We turn then to that review.

II

Expunction is not a right; it is a statutory privilege. T.C.R. v. Bell Cnty. Dist. Attorney's Office, 305 S.W.3d 661, 663 (Tex.App.-Austin 2009, no pet.). The expunction statute is an exception to the established principle that court proceedings and records should be open to the public. See, e.g., Express–News Corp. v. MacRae, 787 S.W.2d 451, 452 (Tex.App.-San Antonio 1990, orig. proceeding) (recognizing constitutional right to public trials and presumptively open court records); Tex.Code Crim. Proc. art. 1.24 (requiring public trials). The statute is designed to protect wrongfully-accused people from inquiries about their arrests. See Ex parte S.C., 305 S.W.3d 258, 263–64 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (stating statute was enacted to prevent the record of a wrongful arrest from negatively impacting a person for the remainder of his life”).

The statute provides for a truncated expunction procedure that requires neither filing a petition nor a hearing. Tex.Code Crim. Proc. art. 55.02 § 1. The truncated procedure commences with a defendant's request for expunction, such as a request made orally on the record by defense counsel. Id. The acquitted defendant must provide the trial court with certain information, including a list of all officials and agencies to be named in the expunction order and notified of the expunction proceedings. Id. art. 55.02 §§ 1, 2(b). Within thirty days of acquittal, the trial court is to enter the expunction order, which is prepared and filed by defense counsel or by the prosecutor, if the acquitted defendant is not represented by counsel. Id. art. 55.02 § 1. The court clerk then sends a certified copy of the expunction order to the Department of Public Safety and to each of the officials and agencies named in the order. Id. art. 55.02 § 3(c).

“On receipt of the order, each official or agency or other governmental entity named in the order” is required to return to the court all records and files that are subject to the order or, if their return is impracticable, to obliterate all information identifying the acquitted defendant. Id. art. 55.02 § 5(a)(1). Any of the entities named in the order may appeal the order as in civil cases generally. Id. art. 55.02 § 3(a). The clerk is directed to destroy the collected files and records in some cases, but the files and records are not destroyed in the case of an acquittal. Id. art. 55.02 § 5(d). In acquittal cases, the clerk maintains the expunged records and files but generally only the acquitted defendant has access to them. Id. art. 55.02 § 5(c).

Expunction, however, is not absolute. The statute provides for exceptions, permitting the retention of records and files, if they may be needed in future criminal or civil proceedings. Id. art. 55.02 § 4. Article 55.02 provides two exceptions for acquittal cases which apply if (1) the records and files are necessary [to investigate and prosecute] a person other than the person who is the subject of the expunction order; or (2) the state establishes that the records and files are necessary for use in (A) another criminal case ...; or (B) a civil case, including a civil suit or suit for possession of or access to a child.” Id. art. 55.02 § 4(a–2)(1), (2).

III

Bledsoe was acquitted in the underlying criminal prosecution on June 17, 2011. D...

To continue reading

Request your trial
42 cases
  • Ex parte Ferris
    • United States
    • Texas Court of Appeals
    • October 2, 2020
    ..., 547 S.W.3d at 621 (citing J.T.S. , 807 S.W.2d at 574 ). "Expunction is not a right; it is a statutory privilege." In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). The statute is designed to protect wrongfully accused people from inquiries about their arrests. ......
  • Tex. Educ. Agency v. S.E.H.
    • United States
    • Texas Court of Appeals
    • December 28, 2018
    ...expunction is not a right; it is a statutory privilege that the Legislature has created and could remove entirely. In re State Bar of Texas , 440 S.W.3d 621, 624 (Tex. 2014). And of course, the fact that one actually served community supervision, although under a void statute, might be prob......
  • Ex parte E.H.
    • United States
    • Texas Supreme Court
    • May 15, 2020
    ...617, 619 (Tex. 2018). Because expunction is a statutory privilege and not a constitutional or common law right, In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014), courts must enforce the statutory requirements and "cannot add equitable or practical exceptions ... that the legislatur......
  • Tex. Dep't of Human Servs. v. Okoli
    • United States
    • Texas Supreme Court
    • August 22, 2014
    ... ... Oliver OKOLI, Respondent. No. 100567. Supreme Court of Texas. Argued Oct. 9, 2013. Decided Aug. 22, 2014. 440 S.W.3d 611 David R. Richards, Richards Rodriguez & Skeith LLC, Conroe, Manuel QuintoPozos, Philip Durst, Deats Durst Owen & Levy, P.L.L.C., Austin, TX, for Amicus Curiae Texas State Employees Union. Angela Veronica Colmenero, Assistant Attorney General, Beth Ellen Klusmann, Assistant Solicitor General, Office of the 440 S.W.3d 612 Attorney General, Clarence Andrew Weber, Kelly Hart & Hallman LLP, Daniel T. Hodge, First Asst. Attorney General, David C. Mattax, Director of ... ...
  • Request a trial to view additional results
6 books & journal articles
  • DWI Expunctions
    • United States
    • James Publishing Practical Law Books Archive Texas DWI Manual - 2018 Defending the case
    • August 3, 2018
    ...that was expunged, the expunged records become public record and are subject to discovery in the lawsuit. [ In re State Bar of Texas , 440 S.W.3d 621, 625–26 (Tex. 2014).] If the records have already been destroyed, the rule of spoliation will apply. [ W.V. , 669 S.W.2d at 378; Tex. R. Civ.......
  • DWI Expunctions
    • United States
    • James Publishing Practical Law Books Archive Texas DWI Manual - 2020 Defending the case
    • August 3, 2020
    ...that was expunged, the expunged records become public record and are subject to discovery in the lawsuit. [ In re State Bar of Texas , 440 S.W.3d 621, 625–26 (Tex. 2014).] If the records have already been destroyed, the rule of spoliation will apply. [ Ex parte W.V. , 669 S.W.2d at 378; Tex......
  • DWI Expunctions
    • United States
    • James Publishing Practical Law Books Archive Texas DWI Manual - 2017 Defending the Case
    • August 4, 2017
    ...case that was expunged, the expunged records become public record and are subject to discovery in the lawsuit, [In re State Bar of Texas, 440 S.W.3d 621, 625-26 (Tex. 2014).] If the records have already been destroyed, the rule of spoliation will apply. [W.V., 669 S.W.2d at 378; Tex. R. Civ......
  • DWI Expunctions
    • United States
    • James Publishing Practical Law Books Archive Texas DWI Manual - 2016 Defending the Case
    • August 4, 2016
    ...case that was expunged, the expunged records become public record and are subject to discovery in the lawsuit, [In re State Bar of Texas, 440 S.W.3d 621, 625-26 (Tex. 2014).] If the records have already been destroyed, the rule of spoliation will apply. [W.V., 669 S.W.2d at 378; Tex. R. Civ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT