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.

Tyler mayor to run B&B for racially profiled black men, and other stories

Blogging was slow last week but that doesn't mean there weren't quite a few items in the news which merited Grits readers' attention. Here are a few of them:

Medical neglect at TDCJ espied after prisoner death

Alton Rogers died of head trauma in an Amarillo prison unit about a year ago after his cellmate slammed his head into the concrete. But autopsy results and medical records revealed he was extremely malnourished and significant medical problems had long been neglected by TDCJ which also contributed to his death. The Intercept has excellent coverage of this story. 

Tyler mayor to run B&B for racially profiled black men

Heisman trophy winning running back Ricky Williams was stopped by cops in my hometown of Tyler earlier this month and questioned in an exchange caught on police dashcam. He'd been taking a walk around his hotel, where he was staying in order to attend an awards dinner for Earl Campbell's foundation, when a homeowner called the cops to report a black man had been standing near his back fence. In Tyler, this apparently will get three cops sent to the scene ASAP. Two of the officers recognized Williams before they stopped him. But the third did not and began to aggressively question him, even lying to him to try to get him to confess to a crime. He told Williams he knew "more than you think I know," including that Williams had been in a neighbor's backyard, not just walking past it. Williams didn't bite, but he did question whether this was a racially motivated stop. This spurred the other two officers, who by this time probably knew the encounter was about to end up online, to interject that this is how they'd treat anyone in this circumstance and try to defuse the situation. Later, Tyler's mayor Martin Hines reached out to the former Miami Dolphns star, offering to let Williams stay in his personal family home the next time he's in town. (“I even invited him to stay with my family when he’s here. We have a guest room he’s welcome to.”) Grits imagines the mayor similarly extends this offer to all black men in Tyler who feel they've been racially profiled by police, don't you think? No chance Williams only got that offer from a starstruck mayor because he's a celebrity and a famous Texas football player. Nah! That can't be it.

Expunge this

For those in and around Austin, the UT law school's Expunction Project will hold a couple of intake sessions next month. Go here for more information.

Austin gets new police monitor

I don't know the new Austin Police Monitor, but the last one, Margo Frasier, was the best we ever had. She made the most of what, on paper and in practice, is a weak and ineffectual office. But it possesses a bully-pulpit function that only works if the Monitor uses it. She did. Will her successor? That's the question lingering in my mind. We'll know soon enough.

Dallas pension fight further devolves

Talks over a pension deal in Dallas have completely broken down and the city may soon pull out of the pension fund and create a new one going forward. Police unions' scorched earth tactics probably will preclude additional negotiations (anybody who questions their demand for a bailout is immediately dubbed a liar, said to have "conned" officers, accused of hating the retirees, etc.), setting the stage for years of litigation that's in the best interest neither of taxpayers nor retirees. The likelihood that police pensions drive the state's second largest city into bankruptcy increased this week.

'New breed of prosecutors'

Freshly minted DAs in Austin and Houston were among those profiled in the Marshall Project item about reformer prosecutors elected on the same day as Donald Trump. I'm kind of surprised they didn't mention Nueces County, which was truly a race decided on reform issues. In Harris, the flip was more rooted in partisan shifts that also impacted the judiciary and other countywide offices.

Death decline

This item from Houstonia magazine credits better-quality lawyering for Texas having the lowest number of executions last year in two decades. And that's certainly part of it. Unmentioned, though, was a change in the law from 2015 which required prosecutors to notify the defense when they request an execution date from a judge. This additional notice has given the defense heretofore unavailable opportunities to challenge execution dates at the time they're requested, rather than find out later only when the judge issues an order based on an ex parte request. Some of those whose dates were delayed will still eventually be executed, but the change prevents some of the last-minute wrangling and postponements that historically surround such events, While the effect likely is short-term, that new law probably explains the dip in executions in 2016 better than broader macro factors like attorney quality.

Harris DA accused of withholding snitch deal, conflicting testimony

Attorneys from Baker Botts have alleged in filings to the Texas Court of Criminal Appeals that Harris County prosecutors engaged in misconduct in a capital murder case, failing to disclose that a key witness "had provided two separate and conflicting statements to police," as well as failing to "disclose a deal not to prosecute another prosecution witness in exchange for his testimony."

Reduce drug penalties, expand treatment, opportunities for addicts

Treatment, not incarceration, is key to reducing drug-related crime, wrote the executive director of Austin Recovery in a column calling for reducing penalties for low-level drug possession from a state-jail felony to a misdemeanor. "Lowering penalties for minor possession can save Texas more than $60 million – funds that can be used to decrease the waiting list for treatment and overdose prevention. Decreased penalties also mean that people with addiction still have the opportunities to achieve their full potential," she concluded.

Cowtown cop's disciplinary file secret

See an update from AP on the episode out of Fort Worth in which an officer arrested a black mother and daughter while verbally defending the white man who had allegedly assaulted her son. The story noted that disciplinary records for past incidents involving the officer are secret unless they resulted in a firing or suspension. That's a problem not just for public accountability but also for prosecutors. In cities which have adopted the state police and fire civil service code, prosecutors similarly lack access to "impeachment" information in disciplinary files of officers they put on the stand as witnesses, although they have a duty under the Michael Morton Act to disclose such information. The Legislature needs to plug this gap in the MMA, which puts prosecutors in a particularly rough spot.

Crime by the numbers

Vox took a deep dive into the new FBI crime statistics providing important context to the "American carnage" demagoguery emerging from the White House these days.

Links on Texas criminal records policy

As two House committees prepare for a joint hearing on Wednesday related to criminal records in Texas, the Legislative Reference Library offered these links for anyone preparing for the event:

May 25 Top

House Committees on Government Transparency & Operation and Homeland Security & Public Safety (Joint Hearing) 

Joint charge: Criminal records

• Survey of State Criminal History Information Systems, 2014, U.S. Department of Justice, Bureau of Justice Statistics, December 2015
• Interim Report to the 84th Legislature (Charge 3 - Sale of criminal histories), House Committee on Criminal Jurisprudence, January 2015
• Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, William Wayne Justice Center for Public Interest Law, The University of Texas School of Law, March 2013
• Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (Part IV/C, Bulk dissemination of records and state regulation of bulk dissemination), National Consumer Law Center, April 2012
• An Audit Report on The Criminal Justice Information System at the Department of Public Safety and the Texas Department of Criminal Justice, State Auditor's Office, September 2011

Last week, the LRL gave this link list for a related hearing in the Senate Criminal Justice Committee which included these additional links:

Charge 5: Dissemination of bulk criminal records   

• Fourteenth Report Examining Reporting Compliance to the Texas Computerized Criminal History System, Texas Department of Public Safety, January 2016
• Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, SEARCH, The National Consortium for Justice Information and Statistics, 2005
• Interim Report, 77th Legislature: Charge Three (Criminal records), Senate Committee on Criminal Justice, September 2000

House committee: Raise age of criminal culpability from 17-18

The Texas House Criminal Jurisprudence Committee in its interim report (pdf) recommended raising the age of criminal culpability from 17 to 18 years old. What sorts of offenses are seventeen year olds committing in Texas?

Like teenagers in the juvenile system, 17-year-olds are typically arrested for non-violent, relatively minor offenses as demonstrated. In 2013, for example, 44% of all 17-year-olds arrested were arrested for larceny, marijuana possession, violating liquor or public drunkenness. Also, between 2012 and 2013, arrests of 17-year-olds dropped by 20 %, going from 32,981 arrested in 2012 to 26,274 arrested in 2013.

In all, "17-year-olds added up to about 3% of all adult arrests in 2013." So in the scheme of things we're talking about a significant but not monumental change. There's an excellent, in-depth discussion of this issue in the report that we'll come back to later when the legislation is heard and which is mandatory reading for those interested in the topic.

The committee also recommended expanding eligibility for expunction and shortening the waiting periods before people can apply for orders of expunction or non-disclosure. MORE: See an analysis of this section of the report from Bryan attorney Lane Thibodeaux.

They would expand regulation, modestly, of criminal history sales by the state. They would expand pretrial diversion and treatment programming for mentally ill defendants.

On graffiti, they suggested expanding abatement programs and raising the penalty thresholds to adjust for inflation.

They advocated reducing the number of criminal penalties outside the penal code, and expanding community supervision for state jail felonies, including implementation of "split sentencing" where a defendant is supervised on probation following a brief incarceration stint.

Grits may have more to say on these topics later when I've had a chance to read the report but for now I wanted to pass along the link. Read the full thing (pdf) for yourself.

Committee to consider recording interrogations, regulating graffiti, Texas' insane insanity defense and more

Let's point out a few items of interest on the Texas House Criminal Jurisprudence agenda tomorrow.

Record police interrogations
Rep. Terry Canales has a bill on the agenda, HB 1096, which would require police to record custodial interrogations in serious offenses. This is one of a handful of recommendation from the Tim Cole Advisory Panel on Wrongful Convictions that has not yet been implemented. (See this Grits post and the links at the bottom for more background.)

Regulating graff: Two approaches
There are a pair of graffiti-related bills up on Tuesday. One, HB 36 by Menendez, is a straight up enhancement bill as though harsher penalties have ever reduced graffiti in the past. (Naturally, the LBB assumes locking up more people for longer periods will cost no additional tax dollars). The other graffiti bill, HB 3494, is a much more interesting piece of legislation. It would raise the damage thresholds for graffiti punishments and establish a pretrial diversion program requiring community service, restitution, and, with the consent of the property owner, that the defendant clean up the sites they'd despoiled. Menendez's bill amounts to pointless grandstanding that wouldn't affect graffiti levels at all. Moody's bill is on the right track - making both the punishments and penalty categories fit the crime while focusing on restitution and cleanup. But the state should also offer up free spots - say on highway pillars, drainage ditches, concrete berms and the backs of street signs - where graffiti would be allowed. Like other forms of expression, it's appropriate to regulate the time, place and manner but a complete ban is as wrong-headed as it is unenforceable.

Wiping records clean for low-level alcohol and drug offenders
Rep. Alma Allen has proposed HB 1070 which would allow expunction for certain alcohol and drug offenses upon successful completion of probation. I'm for just about anything that facilitates employment upon reentry and provides incentives for good behavior instead of only punishing probationers' missteps.

Reduce penalties for petty drug crimes
Rep. Sylvester Turner has a bill on the dock (HB 2044) which would reduce penalties for less than a gram drug possession from a state jail felony to a Class A misdemeanor, similar to legislation heard last week in this committee by state Rep. Senfronia Thompson (see this discussion). I'm a bit surprised the bill wasn't heard along with Thompson's legislation.

Banning (more) native plants
Rep. Doc Anderson has yet again proposed legislation (HB 124) to ban salvia divinorum, a native Texas plant with moderate psychedelic properties which has emerged as a (mostly unsatisfactory) substitute for more common, illicit substances, but with sickening side effects. Anderson and state Sen. Craig Estes have been trying to pass this same bill since 2007, but with surprisingly little success.

The insanity of Texas insanity defense
Rep. Garnet Coleman will present HB 3765 revisiting the insanity defense in light of difficult and terrible cases like that of Andre Thomas who murdered his family then ripped his own eyes out, eating one of them. If the insanity defense doesn't cover Mr. Thomas' situation then IMO the law is just as deranged as he is. See prior, related Grits coverage. Society has only just begun to think honestly about the implications of major schizophrena and people who hear voices - until now medication or incarceration have been the only two approaches and neither "solution" amounts to much more than a band aid. There are a small minority of dangerous mentally ill people who need to be institutionalized for their own protection and others'. But most people who hear voices will never succumb to such extreme impulses and for those who do there are almost always warning signs. The worst-case scenario arises with people like Thomas who fall through the cracks, never receive meaningful treatment, then are subjected to the harshest possible punishments when tragedy occurs, an outcome that satisfies no justifiable punishment goal save vengeance. (See Brandi Grissom's six-part series at the Texas Tribune on the Andre Thomas case.) Whether or not Coleman's bill provides a meaningful solution, there must be a better way to handle such cases than the way we do things now.

Enhancements here, there and yon
As usual in this committee, the bulk of the rest of the bills involve enhancements, not just for graffiti and salvia but there are also a pair of bills boosting penalties for hit-and-runs, one boosting the charge for assaulting emergency room personnel, another mandating LWOP for repeat sex offenders and restricting their employment (as though that's necessary!), another reducing access to probation for burglary with intent to commit a sex offense and one punishing registered sex offenders for misrepresenting their identity. Honestly, if this committee decided for just a session not to hear any bills creating new crimes or "enhancing" penalties, it would surely reduce their workload by more than half.

Should expunction burden fall on defendants when charges fall through?

When police and prosecutors make a mistake and pursue charges against a defendant they cannot prove, should the defendant have to pay out of their own pocket to get the records expunged or should it be the state's responsibility?

That's the crux of the question raised by HB 293 by Rep. Harold Dutton which was heard in a subcommittee hearing of the House Criminal Jurisprudence Committee this morning. (See the video here starting at the 7 min., 30 second mark.) While some significant questions were raised that could result in the bill's alteration, the legislation was relatively well received and the members mostly appeared to support it.

Dutton's bill would require automatic expunction in cases where the defendant was pardoned, acquitted, or the case is dismissed. As mentioned previously, the legislation would also shift the burden to the state to clear the defendant's name when accusations never come to fruition.

I testified for the bill on behalf of the Innocence Project of Texas because so many DNA exonerees have trouble finding jobs, housing, etc., even though they've been cleared by the courts and in many cases received pardons. State and private databases continue to dredge up information about their cases that causes employers and landlords to reject them.

Especially for lesser offenses, the collateral consequences of having bad information in public databases can be more serious, even, than incarceration or other punishments.

Several of Texas' DNA exonerees have told me they must carry newspaper clips about their exoneration to job interviews in order to explain why they still show up as violent felons in state and private databases. But even with that documentation, once their application is submitted, too often some bureaucrat in the Human Resources department will later run a database query that keeps them from getting a job.

The bill's main sticking point, as a functional matter, was whether it should include "dismissals" that occur after a defendant has been given deferred adjudication and successfully completed a community supervision stint. Some prosecutors said that such information should be kept in case the person commits more crimes in the future, but the subcommittee didn't seem exceptionally sympathetic to that complaint.

Rep. Paula Piereson, to her credit, spoke knowledgeably and forcibly about flaws in Texas' deferred adjudication statute, complaining that defendants took such deals because they were told there would be no "conviction" on their record, only to learn years later that employers, landlords and others could still access the information and they were not eligible for the information to be expunged. Piereson declared that Texas should either "do away with deferred adjudication" or allow the records to be expunged, as Rep. Dutton proposed. "Deferred [adjudication] does not work," she opined.

The subcommittee seemed inclined to identify a list of specific offenses - mostly violent crimes, sex crimes, and possibly family violence, to judge by the discussion - where records should not be expunged.

Another prosecutor concern dealt with whether an expunction would harm cases where charges are dismissed with the intent of later refiling them. It seems to me, though, this could be easily addressed by inserting language that requires a prosecutor to declare whether they intend to keep open the option for re-indictment, perhaps establishing a deadline beyond which, if no new charges are filed, the records would be expunged.

Neither of these seemed like insurmountable objections.

The only other significant concern raised about the bill was a lame argument that this would be an unfunded mandate. Of course, DAs have no problem paying to pursue these cases, they just don't want to pay to do right by the defendant after they make a mistake.

In terms of cost, the committee was told that some counties charge a court fee to apply for expunging records - in Harris County, e.g., the fee is $250 - plus the defendant must typically pay an attorney, perhaps somewhere in the range of $1,500 to file the motion with the court.

As drafted, Dutton's bill entirely places the onus on the state to pursue expunction in these cases, including the cost, but there was some discussion of whether a $250 fee to the defendant might overcome the "unfunded mandate" objection. On fairness grounds, I don't particularly like that idea. If the burden of proof in court is on the state to obtain a conviction, it seems only just that the state should be responsible for making the individual whole when they're unable to meet that burden.

If prosecutors have enough manpower to pursue a case, they should be willing to devote the manpower to see it through to the end, win or lose. HB 293 is a terrific bill and, with a few adjustments, I'm hopeful the committee and the Legislature will approve it.

Innocence Commission bill up this morning

I'll be testifying this morning at an 8 a.m. subcommittee meeting of the Texas House Criminal Jurisprudence Committee (live video here) to support legislation by Rep. Ruth McLendon on behalf of the Innocence Project of Texas to create an innocence commission in Texas to identify causes of false convictions and ways to prevent them.

An innocence commission would provide a way to systematically vet the errors that cause false convictions, similar to the way hospitals hold a "morbidity and mortality" conference after someone dies in their care to figure out what went wrong and how to prevent it in the future.

Texas' recent string of DNA exonerations have provided a unique window into the mechanics of false convictions. This bill would create a mechanism for formally identifying sources of error and suggesting ways to reduce their number in the future. Of course, we already know many of these causes - including faulty eyewitness ID procedures, mendacious informants, false confessions, and flawed forensics - but those are only the most prominent examples, hardly an exhaustive list.

I'll also be testifying in support of another bill by Rep. Harold Dutton to provide for expunction of records in cases where the defendant was pardoned, acquitted, or the case is dismissed. Dutton's bill would shift the burden to the state to clear the defendant's name when their accusations are overturned or never come to fruition.

There are several other notable items on the subcommittee agenda as well, including a good open records bill by Dutton that would make grand jury proceedings public records after the panel has disbanded. This would be a key accountability reform for District Attorneys, in particular, allowing the public post facto oversight of an aspect of justice that is at once one of the most critical parts of the process and also the most opaque.

Speaking of Harold Dutton, his bill (discussed here) to require drivers' consent to searches at traffic stops to be either written or recorded will be up in the House Public Safety Committee this afternoon.

UPDATE: See Rep. McLendon's press release about the innocence commission bill