Thursday, June 10, 2021

Expungements for old weapons charges under Texas' new unlicensed-carry law could be widespread, but likely initially limited

Much have been made of the public-safety implications of Texas passing unlicensed-open-carry legislation (HB 1927) in the wake of mass shootings in El Paso, Odessa, and Sutherland Springs. But little attention has been paid to a provision in the bill allowing expunctions for past convictions for unlicensed carrying of a weapon (UCW, Penal Code 49.02). Rep. Senfronia Thompson added the amendment in the House, Charles Schwertner stripped it off in the Senate, then a narrower version was adopted in conference committee, expunging only UCW cases.

Even so, this is the most common weapons-related offense. In 2018, more than 13,000 Texans were arrested for UCW or some other weapons charge - about 48.3 weapons arrests for every 100,000 people.

Projecting backward, hundreds of thousands of people have likely been arrested for unlawfully carrying a weapon over the years, and now all those cases can be expunged.

Will they? That's another question. It's not automatic. People must file an ex parte petition with a district court to have their old conviction reviewed for possible expungement. So they'll need to hire a lawyer or possess the gumption to strike out on their own to tackle the job. Some will; most won't.

I'd love to see some advocacy group create a form ex parte petitioners could use to ask the court to expunge their old cases. (Hey, Texas Fair Defense Project and/or Civil Rights Corps, y'all up for this?) Prosecutors have historically fought expungement petitions - particularly on weapons charges - because they want to be able to use people's past crimes to seek enhancements or argue for harsher sentencing. But they don't have much grounds to oppose expungement in these cases; the law is pretty clear.

In the long, run, though, if legislators think these old convictions should be expunged, they should instruct it be done as a class. This provision will help a few folks but will mostly remain a symbolic gesture unless lawyers are paid to process the cases or expungement is made automatic.

9 comments:

Phelps said...

I agree 100%. Expungements for the wealthy or sophisticated only is no benefit to the People. The legal community should step up (like so many have, thankfully, for The Innocence Project) and take on these cases pro Bono. These aren’t legally difficult cases — they just need someone with a bar number and a couple of hours of courthouse know-how.

Anonymous said...

Most District Clerk's offices already have forms available for Petitioners to file an expunction petition and order. There is also online information and forms put out by TexasLawHelp.org and other organizations. They may need some slight updating to account for this new bill, but it's fairly easy for a person to file without an attorney.

Anonymous said...

Does the expunction provision only relate to firearms or does it also include UCW for knives, etc.? Where can we find a copy of the text of the final bill?

Anonymous said...

It'll be interesting to see how prosecutors and the courts handle the cases that were truly arrests for carrying open or concealed without a License to Carry vs. those Unl Carry Weapon charges that were brought as the result of possessing a firearm while in commission of another offense (e.g. DWI, POM, etc).

Gritsforbreakfast said...

Here's the text of the bill, 11:31. The relevant provision is in section 4.

Gritsforbreakfast said...

@11:35, All convictions under 46.02 are authorized to be expunged, it's not limited by those circumstances in the statute. I guess the Texas CCA's "Government Always Wins" faction could write their own version; they've done it before. But it's a pretty declarative, comprehensive, and straightforward provision.

Barry Green said...

Unless I'm missing something, expunction is only available for UCW convictions. If I had to guess, I would think 80% of UCW arrests over the years resulted in deferred adjudication. Possibly more. Are those people out of luck? Deferreds, despite what is commonly believed, stay on your "record" forever just like convictions and can't be expunged unless statutorily authorized.

Anonymous said...

This is not as far-reaching as you seem to think it is. The expungement only applies to 46.2(a). The rest of 46.02 which covers the more common arrests for carrying while committing another offense (anything over a Class C) or while an otherwise prohibited person (Felon or Domestic Violence) is not covered.

Anonymous said...

@9:55:00 Barry, I think you're right about it only applying to convictions and not deferred probations. So the whole expunction statute now addresses acquittals, pardons, and 46.02(a) convictions, but deferred probations are lost in a no-man's land in the middle. I wonder if this was intentional or even considered in the drafting/review of the bill?