In my last post, I expressed optimism that House Bill 3579 could expand expunctions in Texas so that when a person is initially charged with a higher level crime, but pleads to a misdemeanor, he or she could have the original arrest expunged (destroyed). This bill made it to the governor’s desk, but unfortunately, he has decided to veto.
A good explanation of how this bill would have helped is in the case of a DWI. It is often the case that a prosecutor will offer to reduce a DWI to Obstructing a Highway, a class B misdemeanor. There are a lot of good reasons to take that deal. You can avoid jail time and many of the fines and surcharges associated with a DWI. A Trial will cost additional attorney fees, and juries are unpredictable. There is also the relief you will feel once the matter is behind you. So even a person who has every reason to proclaim their innocence would often still take that deal. As the expunction laws stand, this person who plead guilty to the lesser obstruction charge would still have a DWI arrest on his or her record.
Where this hurts most is in the context of employment. An HR department does not want to hear an explanation about why your crime wasn’t that bad. When they ask if you have ever been arrested, they just want to hear “No!”. With an expunction, you have the legal right to say no to that question. In a competitive job market, even a minor arrest can be the difference between landing a job, and that job going to someone else.
Governor Abbott gave several reasons for the veto in a statement. Among these reasons, he states that the bill “would deprive law enforcement of information about the offense history of habitual criminals, which may be useful in the investigation of future crimes.” This gives some hope that a similar bill could pass in the next session with a few tweaks. His statement seems to suggest that Abbott would approve an order of nondisclosure for these situations.
An order of nondisclosure is not quite as effective as an expunction, because the records are not destroyed, and remain available to law enforcement agencies. Most of us know that if the record is out there, somebody with enough motivation can still find it. However, just like with an expunction, a person with an order of nondisclosure has the legal right to say “no” when their employer asks about past arrests.
This will be an interesting issue to follow in the next legislative session. In the age of the internet and easy access to information, past criminal records can cause problems that linger for a lifetime. As new technologies develop, laws need to catch up. Hopefully, an expansion of our current expunction laws is around the corner.