Time to revisit expunction statute
Making a public record disappear in Texas is no easy feat, but the law that allows it has a major flaw. It appears to lack a mechanism for reviewing the process once the record is obliterated.
And San Antonio needs such a review because of the issues arising from the disappearance of a police report filed by San Antonio mayoral candidate Greg Brockhouse’s wife 10 years ago. She alleged domestic violence. Brockhouse has essentially denied this specific incident and said, when asked directly, that he had no part in the record’s expunction. But an expunction is the likeliest explanation for why the record is gone.
This is a mystery that should be solved — not just because a mayoral candidate has been alleged to have been involved in domestic violence incidents, but because public records should not go missing without explanation.
If the 2009 report was legally expunged, this falls under Chapter 55 of the Texas Code of Criminal Procedure, which allows people who have been arrested but not convicted to to seek an order to have such records destroyed.
The matter is usually heard by a civil district court judge, but the law also gives municipal court judges and justices of the peace jurisdiction over expunctions. They require the law enforcement agency that generated a report, the prosecution team and the Texas Department of Public Safety, the official keeper of criminal records, to sign off.
This has been a matter of some dispute, but according to at least two judges we consulted, the law also allows for the expunction of police records even when there has been no arrest. As one of those judges explained, “It’s unconventional but it’s legal.” And a criminal defense attorney who handles expunctions said it happens with some regularity.
Here’s how the law can get gray.
We asked for citations on how it is possible to expunge a police record even if an arrest didn’t occur. It could be in how officials translate “noncustodial arrest,” records that also can be expunged if a prosecutor does not object and “certifies the files are not needed in any criminal investigation or prosecution.” There is no evidence that an arrest occurred in 2009 or in a previous incident in 2006.
Once an order granting an expunction is signed, the records are destroyed and the order granting the expunction is sealed. And there’s the rub. There is then no way anyone can seek a review to ensure proper legal procedure was followed.
The Legislature or the judiciary on its own must develop a system of checks and balances that allows for a judicial review of an expunction when warranted. And the law’s language must be tightened. What constitutes “noncustodial arrest”? As matters now stand, those in official capacity say they are prevented from even commenting on this 2009 police report, though this newspaper has obtained a copy showing that it existed.
There was no evidence of an arrest based on that 2009 report, but neither was there from the 2006 report — in which Brockhouse claims he was the victim. Yet that 2006 report hasn’t been expunged.
All this begs a question far beyond whether domestic abuse occurred, though that is a serious enough matter. Both the candidate and his wife, Annalisa — to whom he is still married — claim a smear campaign but without adequately acknowledging whether the report existed and, if it did, why it doesn’t now.
How is oversight possible when all parties can pretend nothing happened that merits discussion — even in a mayoral race in a city with a serious domestic abuse problem? The incident described in the report obtained by this newspaper — reporter Brian Chasnoff broke the story — transpired two days before Christmas 2009.
We may never know how the record of that incident disappeared. And that’s a problem. Was there a legal expunction, or did a politically connected City Hall insider get special treatment? We strongly suspect the former, but with the candidate’s direct denial that he did not cause the record to be expunged, the possibility that it simply disappeared for other reasons should be considered.
We understand that this law’s purpose is to give a second chance to those who have minor run-ins with the law — though there is nothing minor about domestic abuse. Minor incidents that create a public record can haunt people when they undergo a criminal background check, seek employment or submit to a consumer credit report.
But without any review process, we simply have to assume that all expunctions are being done by the book. And we shouldn’t operate on assumptions. And as is — with Brockhouse’s denial — we don’t even know for sure whether there was an expunction. And if there wasn’t, someone needs to explain why the record is gone.