After Criminal Statute Ruled Unconstitutional, People Seek Expunctions of Criminal Records

Criminal records can cause problems for a person long after their case has ended and they have paid their debt to society. Background searches are now a common feature in employment, housing, and other important areas of society. Under certain circumstances, it is possible to remove information about a criminal case from the public record with an expunction or seal information from public view with an order of nondisclosure. These types of relief are usually only available in cases that ended in an acquittal, an executive pardon, or the successful completion of a deferred prosecution plan. Some people are now attempting to expunge records of convictions in cases in which the U.S. Supreme Court has ruled the underlying statute unconstitutional. This does not fit neatly into the letter of most expunction laws, but it seems consistent with those laws’ spirit.

An expunction, also known as expungement, removes information about a case from court records and law enforcement files, including the actual destruction of the physical file. This includes records relating to a person’s arrest, detention, and charge or charges. An order of nondisclosure prohibits public officials from releasing information about a criminal case. Texas allows expunction of records in cases in which a trial ended in an acquittal, a pardon was issued after a conviction, or any type of clemency was granted based on “actual innocence.” Tex. Code Crim. P. Art. 55.01(a). For cases that never proceeded to trial, Texas allows expunctions when the charges were dismissed, no community supervision was ordered, and a sufficient period of time has passed. Major felony offenses are generally not eligible for expunction or nondisclosure.

Up until 2003, 14 states in the U.S., including Texas, had criminal statutes prohibiting “homosexual conduct,” also known as “sodomy laws.” Texas made it a Class C misdemeanor to “engage[] in deviate sexual intercourse” with a member of the same sex. Tex. Pen. Code § 21.06. The U.S. Supreme Court ruled that this statute violated substantive due process rights under the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558 (2003). The ruling overturned a prior ruling affirming a similar law in Georgia, Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence ruling effectively invalidated these laws in all 14 states. As of 2014, however, the laws remained on the books in 12 of these states, including Texas.

The Supreme Court’s finding that these laws violate the Constitution raises a question of what should happen to the convictions that were already in place. A Class C misdemeanor is the lowest level of offense under Texas law, but a conviction can still present serious problems in background checks. Could it be possible to expunge conviction records in this situation?

Texas law does not expressly offer the possibility of expunction, but a successful effort to expunge conviction records involving Tennessee’s sodomy law involved the use of a little-known English common law doctrine. Lawrence did not affect Tennessee, since a state court had already invalidated its law. Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996). The writ of audita querela allowed the court to review the conviction and grant expunction on the ground that a new legal defense—i.e., the Campbell and Lawrence rulings—had become available.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For over 20 years, board-certified white-collar crime lawyer Michael J. Brown has represented people facing alleged criminal charges in West Texas state and federal courts. Contact us online or at (432) 687-5157 today to schedule a confidential consultation to discuss your case with an experienced advocate in the criminal justice system.

More Blog Posts:

Expunction Allows the Removal of Some Criminal Information from the Public Record, With an Important Limitation Because of the Internet, Texas Criminal Lawyer Blog, June 29, 2015

Expunction of a Criminal Record in Texas is Almost Never a Routine Procedure, Texas Criminal Lawyer Blog, August 19, 2008

Motions for Nondisclosure of a Criminal Record in Texas, Texas Criminal Lawyer Blog, May 30, 2008.

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