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saltydog452 wrote:The legislatures (all of them) SHOULD run as we were taught in 9th Grade Civics Class.

Thats about as likely as your car keys having enough mass to pull the Moon out of orbit.

salty

saltydog452 wrote:Tell me where I'm wrong here.

To qualify for an legal (not political) expunction, the jury/judge must render a not guilty declaration. Notice, that is not the same as a Guilty Plea with deferred adjucation.

salty

Not disagreeing with what you say...under the CURRENT law, you are correct. You are talking about the way it IS...I'm talking about what COULD be. What Charles originally said was that he THOUGHT the state SHOULD grant automatic expunction upon completion of deferred adjudication, and I agreed and said I THOUGHT the automatic expunction SHOULD apply to all offenses, if deferred adjudication was deemed appropriate to begin with. Unless the current statutes were amended, that can't happen, but it is what I think would be fair and just in an ideal system. As it stands, people are led to believe that because Def. Adj. results in a non conviction, that their record is clean, and won't affect them later on, but that is not necessarily the case.

saltydog452 wrote:Dang talltex, I just don't know.

Since you were either convicted of, or confessed to, a crime, the history is there. And can't (legally) be expunged.

That'd be where the pardon comes in.

I just don't see that happening for the unwashed masses. Not everybody has access to the Govs office. I see it as just another way that justice is pimped out.

Pandering is illegal. Unless maybe you just happen to be a legislator.

salty

I understand how the current system works in Austin...I've had 3 family members in the legislature over the years and your comment about pandering and influence peddling is well founded. But your belief that once a conviction is in place you are stuck with it unless you get a pardon from the govenor's office is incorrect. That is precisely what expungement accomplishes...it wipes the slate clean legally so that there is no record of arrest or conviction...you get a "do over". However, there are exceptions which we've been discussing (sexual offenses and alcohol offenses for example), where even though you may not have received a final conviction, due to completion of a deferred adjudication, the arrest still shows up on your record...forever. If the current law was ammended, so that successful completion of the deferred adjudication resulted in the record being automatically expunged, there would be no need for a pardon (or a generous campaign contribution) or to go through the legal process of hiring an attorney to file for an expungement.

saltydog452 wrote:Having access to some saved up money is a factor in determining which direction the winds of justice blow.

I was arrested and all that goes with it. The District Attorney felt that the arresting officers case didn't hold water and there was no prosecution.

The Expunction Order to remove that arrest from DPS records cost me 2,000 $ in fees. I'm told that similar things can happen when a disgruntled soon to be ex spouse makes an accusation of mistreating a child.

An accusation can carry the weight of a conviction. Maybe the power to pardon could help, but I don't see that as being available to all. Hopefully it wouldn't be another example of Justice Sold Here shopping.

salty

That is what Charles orginal contention addressed...that in his opinion successful completion of a deferred adjudication sentence should also include an AUTOMATIC EXPUNCTION of the record for that offense. My position was that it should apply to ALL offenses, if the circumstances warranted the deferred adjudication to begin with...particularly those that currently carry a lifetime arrest record penalty. I was arrested for DWI ,28 years ago, in my early twenties...never arrested for any offense before or since...given deferred adjudication...but the law changed on Jan. 1, 1984, creating an "alcohol related offense category" that carries a permanent record penalty. I was misled to think that after the deferred adjudication period, I wouldn't have a "conviction" on my record. I wasn't aware of it until 25 years later when it exluded me from being able to act as instructor for my son's parent taught driver's ed program. That's a misdemeanor charge, not a felony...but I have it on my record for life. The automatic expunction clause would eliminate the need for seperate "pardon" and ensure that there would be no Justice Sold Here situation.

Charles L. Cotton wrote:

If a crime is so offensive that it doesn't warrant deferred adjudication, then add it to the list of crimes not eligible for deferred adjudication.

Chas.

My comment that I felt successful completion of a deferred adjudication sentence resulting in expungement should apply to ALL offenses, is what "couzin" was at odds with. I don't think there should be a category of offenses that it is completely off the table for, because that takes a valuable tool out of the hands of the Judge and prosecutor...let the circumstances dictate whether or not it's an option....not the penal code's legal description of an offense...and then allow the judge/prosecutor/jury to decide whether it is or is not appropiate in that particular circumstance.

I absolutely disagree with the concept of it being available to anyone just because its a first offense, or any other arbitrary requirement...just let the circumstances dictate whether or not it's an option. In a "horrific crime" case, simply don't offer it as an option. When you have a list of offenses where there is "no quarter given", you have made it black or white, with no gray area allowed, and anytime you draw a line in the sand, you will have some people land on the wrong side of that line that may not really belong there.

seamusTX wrote:

..but what about an 18 year old high school senior getting caught having sex with his 17 year old girlfriend...

This kind of case generally would not be prosecutable now in Texas. There's a three-year margin of age that provides an affirmative defense for consensual sexual relations between a minor and adult (of opposite sexes).

An offense would have to involves something like an 18-year-old with a 14-year-old or a 21-year-old with a 17-year-old.

See Penal Code 22.011(e).

I think a lot of sexual prosecutions are brought under questionable circumstances, such as estranged lovers deciding after the fact that they had been raped, or divorcing parents charging one another with sexual offenses.

- Jim

Thanks for the clarification...I wasn't aware of the 3 year age spread now...was just thinking of how it used to be WAY back when it COULD have been an issue to me... but 21 and 17 ? I'd guess that is pretty common today... there are alot of girls who are sexually active at the age of 15/16 and younger. There's no question the two examples you mention occur regularly, and there is great potential for abuse of the system because any such charges MUST be taken very seriously, and in those cases, it results in a "guilty until proven innocent" situation for the accused spouse. I can't imagine the horror an innocent spouse would feel being put in that situation. As a long time business owner, I know that we all live in fear of a sexual harrassment charge. It's almost impossible to defend against, and regardless of the outcome, you are immediately and forever "tainted" by the allegation, because most people do take the view of "where there's smoke there's fire".

My point was that there ARE circumstances that may arise, where a judge or prosecutor knows that it would be a miscarriage of justice to convict someone of an offense with such drastic repercussions, but they ARE guilty of the offense legally...the 21yo/17yo having consensual sex...being able to offer deferred adjudication without a permanent conviction record is a way for the system to satisfy the law, while making allowance for the situation and showing compassion for the offender.

couzin wrote:

talltex wrote:I wholeheartedly agree, and would add that it should apply to ALL offenses...

Disagree - a deferred adjudication for a sex crime should never happen, but it does - and I am not supporting any type of automatic or otherwise erasing of that sort of crime.

I can understand your thinking on that issue...I've never dealt with it on a personal level, and it sounds like you might have. I don't believe deferred adjudication should just automatically be offered on ANY offense...it should be a tool available in the judicial process to try and achieve "justice". There's no reason to say probation MUST be offered for a forcible rape, child molestation, and so on...but what about an 18 year old high school senior getting caught having sex with his 17 year old girlfriend, whose parents insist on filing "statutory rape" charges against the boy? Or a couple engaged in sexual activity in the back seat of a car in a remote but public area being charged with "public lewdness"? That's a world away from holding a knife to someone's throat and committing rape...yet it carries a"sexual offender" registration requirement if convicted. Shouldn't the Judge have some discretionary leeway to avoid ruining their lives by forcing them to register as a "sex offender" everywhere they live for the rest of their life?

In the same manner, I am firmly against "zero tolerance" policies which make no provision for circumstances involved in a particular situation. Our school systems increasingly use such policies to avoid having to make a decision they think may cause them any controversy. There ARE differences in every case that should be taken into consideration...one size does not fit all. There was a case in the DFW area a few years ago where an "A" honor roll student, with no previous discipline issues, had been using his PU over the weekend to help move his grandmother, and on Monday morning someone walking by saw an ordinary silverware knife in the bed of the truck where it had fallen out of a box and reported it to a school administrator...they had a "zero tolerance policy"...the student was suspended and placed in alternative education classes, offsite for the rest of the semester for violation of the "no knife on school property" policy. School administrators point to their "zero tolerance policy statement" and say "it's out of our hands"...and avoid taking any heat from some other parent whose kid intentionally violated it with a "real knife" in his pocket who might accuse them of playing favorites. I just think there are alot of situations where insisting that everything has to be black or white, with no gray areas can prevent justice rather than achieve it. If a Judge and/or jury have considered all the evidence and the circumstances, and think that it truly warrants a "deferred adjudication" sentence, then I do believe that successful completion of the sentence should result in it being removed from the person's record.

Bullwhip wrote:

Charles L. Cotton wrote:I think the law should be changed such that all successfully completed deferred adjudications result in the defendant's record being expunged.

Chas.

I thought that was the point in the first place... be good for a little while, and we toss it out like it didn't happen.

I wholeheartedly agree, and would add that it should apply to ALL offenses...not just felonies. I don't think alot of folks realize it, but effective, 1/1/84, a new class of "permanent record" offenses were created, alcohol related offenses, which not only stay on your record for LIFE, but always show as an arrest even though there was no "conviction" due to the deferred adjudication process. I received a DWI in January of 1984, was given 2 years probation, but was released from it after 12 months. Never been arrested for anything before or since. Fast forward 30 years, and I was going through the Texas Parent Taught Driver's Ed course with my son ( small rural school w/o driver's ed program). After a couple of months...about halfway through the curriculum...I noticed a paragraph I hadn't seen in the materials FAQ section, titled "Who may teach Driver's Ed"? It stated that any adult over the age of 21 was eligible with two exceptions. Only two categories of people are prohibited from acting as DE instructors: anyone who has been convicted of homicide and anyone who has ever been ARRESTED for an alcohol related offense. I thought that can't be right...surely there must be some time limitation, such as within 7 years or something. I stopped by the Sheriff's office (a friend from high school) and asked him about it. He said " oh that won't even show up now...hell it was 30 years ago." I asked him to pull my record up to double check...sure enough it shows on there. I called another high school buddy who is a Lieutenant with the DPS in Austin and asked if that prohibition was really accurate and in effect, and he said "yep...you're screwed...you could be an armed robber, burglar or rapist and you'd be fine, but that DWI is on there forever...just have your wife sign all the paperwork as instructor and send it in that way". I've always tried to teach my son to respect the laws, but he had a hard time accepting that one.