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Monday, November 14, 2011

Reference Tidbit - Going to the Poll on November 8, 2011 - Non-disclosure and Expungement of Criminal Records in Texas

By Jessica R. Alexander, J.D., M.L.S., Reference Librarian

I made it to my polling station last Tuesday, November 8, 2011, with three minutes to spare. I will admit that I did not know that I would have an opportunity to vote on a constitutional initiative that may ease the problems with so-called "deferred adjudications" in Texas.

Proposition 9 on the ballot was worded: "The constitutional amendment authorizing the governor to grant a pardon to a person who successfully completes a term of deferred adjudication community supervision." (Spanish) “Enmienda constitucional que autoriza al gobernador para conceder el indulto a personas que cumplan con éxito un plazo de supervisión comunitaria por adjudicación aplazada.” See Texas Legislative Council analysis of the proposition at http://www.tlc.state.tx.us/pubsconamend/analyses11/analyses11.pdf.

For years citizens and even attorneys believed that a deferred adjudication plea bargain in a criminal case meant that, after the probationary period of deferred adjudication had run, the accused's criminal record would be clear. But, the cold truth is that these deferred adjudications show up in publicly accessible law enforcement records and are treated as convictions by people such as potential employers and landlords, however wrongly. Secondly, the expungement procedure under Chapter 55 of the Texas Code of Criminal Procedure is not available to people who are placed on Community Supervision under Article 42.12 of the Texas Code of Criminal Procedure. Alas, almost all people who plea in exchange for deferred adjudication are placed on Community Supervision.

For purposes of brevity see the website of the Harris County District Attorney, Patricia Lykos, and click on Frequently Asked Questions -- deferred adjudication.

Back to election of November 8, and Proposition 9. : It passed by 57% in favor to 43% opposed. It is companion to a bill signed into law on June 16, 2011, SB 144 of the 82nd Regular Session of the Texas Legislature, 2011, introduced by my friend, Representative Royce West of Dallas, and authorizes "...the governor to grant a pardon to a person who successfully completes a term of deferred adjudication community supervision."

The law is codified in Article 48.01 of the Texas Code of Criminal Procedure. Information on the implementation of the new law can be found on the Texas Board of Pardon and Paroles web page.