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In this case, the applicant had filed the appropriate request for expunction, and the DA was present during the hearing and stated that the DA had no objection to the court's granting the expunction. However, the DPS had filed an objection to the expunction. When the DPS did not show up for the hearing, the judge granted the applicant's request and ordered the arrest expunged. In many courts the judge will approve an expunction without the applicant even attending the hearing.
Here's what the court of appeals wrote regarding their decision in this particular case:
Because Appellee had the burden in the trial court to produce evidence that he was entitled to an expunction but the record only demonstrates that an assistant district attorney advised the trial court that he has no objection to the expunction, there is no evidence in the record to support the trial court’s finding and the expunction order is reversed. Ex parte RJF.
It is interesting to note that the court did not find the applicant was not entitled to the expunction, just that he did not appropriately prove it up.
What's the lesson from this case? In the (unlikely) event that a party to the expunction objects, the client should appear at the hearing and be prepared to testify that the facts in the petition are true. this un-objected to testimony will prove his eligibility for the expunction. If the DA does not object and the DPS doesn't show up, this is a foolproof way to bulletproof the granted expunction order.
Congratulations to my father Russ Hunt Sr's law partner Michelle Tuegel on a fantastic outcome to a hotly contested case in Waco. Michelle, along with Walter "Skip" Reaves and Mark Dyer were able to reach a deal in the retrial of a 28-year old arson case because of their superior understanding of the operation of historic parole laws.
The case involved Ed Graf, a Hewitt man who was accused of capital murder by starting a fire that caused the death of two boys in 1986. Thanks to the hard work of Skip and Mark, the original verdict and sentence were overturned due to questions surrounding the arson science used in the investigation of the original case. Because the fire science was sketchy, the prosecution had to resort to a classic prosecutorial approach in proving the case in the retrial. Texas Observer Story with details.
After a long trial, and after the jury had indicated their deliberations were deadlocked at 10-2 in determining Graf's guilt, the defense team negotiated an agreed guilty plea to the lesser-included offense of murder for a 60-year sentence. Why was this a favorable outcome for Mr. Graf? Because the defense team understood that the parole rules applied in every case are the rules in effect at the time of the offense, not the rules in effect at the time of conviction.
Prior to September 1, 1987 every offense was eligible for "Mandatory Supervision" which is a form of non-discretionary parole release. Mandatory Supervision laws instructed the parole board that once an inmate's calendar time plus his good time equaled his sentence, they must release the offender on parole supervision. Hence the term "Mandatory Supervision." After 9/1/87, Capital Murder was made ineligible for Mandatory Supervision.
Research Pays Off
Michelle consulted with Riverside parole attorney Bill Habern and even verified Graf's accrued time credits with the prison system prior to arranging the deal. She was able to confirm that the deal would guarantee Graf an almost immediate release from prison onto Mandatory Supervision because he had already served more than enough time and earned more than enough good conduct credit for mandatory release to kick in. Had he plead to a life sentence he would not have qualified for Mandatory Supervision. On the day when this offense was committed, a person receiving a 60-year sentence for any offense was eligible for Mandaory Supervision after serving 28 yrs, 4 months, 24 days. Mr. Graf had already served enough time to be eligible for Mandatory Supervision, and was released on October 29, 2014.
The truth is that this area of law is very complicated and there seem to be only a few specialized attorneys who really understand the ins and outs of the arcane parole system in Texas. The attorneys involved in this case did a consistently outstanding job, starting with obtaining the new trial, and culminating with arranging a fantastic outcome for their client.
Was reaching a plea bargain a betrayal of their client who had consistently maintained his innocence in the case, even before the case was overturned due to faulty science? Jeff Blackburn of the Innocence Project of Texas told the Associated Press that he did not think so:
The most important thing is that we get the science right,” Blackburn said. “Not everybody who got convicted on the basis of junk science is innocent. Not everybody who got convicted on the basis of junk science deserves an acquittal or a pardon, and this is proof of that.”
Good Lawyering: Inpiration Plus Perspiration
What is good lawyering? Hard work, a thorough understanding of complex issues, a willingness to explore all options and the ability to craft the most favorable outcome then convince the participants to accept that outcome. Whether at trial, to a judge, or in negotiation, these are the essential pieces of successful lawyering, and the outcome of this case perfectly illustrates some outstanding lawyering from Michelle and the entire defense team.
Following are links to documents that explain in greater depth the somewhat arcane operation of the parole laws in Texas.
Parole In Texas produced by the Texas Board of Pardons and Paroles, lists offenses included in mandatory supervision law according to date offense was committed. Chart on page 12 of "Parole in Texas" reflects the law in effect up to 8/31/1987.
Williamson county has come up with an interesting method to speed forensic blood and drug testing–in FY 2015 they will pay the Department of Public Safety lab to hire two employees who are supposed to expedite the return of blood and drug testing.
It has been obvious for some time that the DPS lab is grossly understaffed, judging by the very long turnaround times for lab testing. It has not been unusual for drug or blood testing to take the DPS lab six months or more. The new contract is supposed to guarantee that lab test results will be delivered within 30-days.
As long as the new push for speed does not lead to corner-cutting or sloppy results, it will certainly be a welcome development to see forensic testing done more quickly.
Williamson county has a very active Pre-Trial Intervention (PTI) Program for first offenders, which results in the charges being dismissed and even expungeable when the program has been successfully completed.
The theory behind the PTI program is essentially that misdemeanor first offenders are the least likely to re-offend, so the prosecutors are willing to cut them some slack. Another way to look at the program is that, rather than burdening the defendant, prosecutor, judge and the probation/jail system with another needless and costly probationer/inmate, low-level, offenders who appear to be unlikely to reoffend can be adequately punished by having to complete similar tasks to what would be required in a formal probation setting without having to be on a formally monitored supervision. PTI is a form of pretrial diversion.
The real benefits to the program are that it only lasts for six months, that the case is dismissed, and that the defendant can have his arrest record expunged. Expungement means that the formal records relating to the fact of the person’s arrest are removed and erased so that no one in the future will be able to see them.
In order to enter the PTI Program an applicant must complete and submit a sworn application and a clean drug test to the County Attorney. While the forms are available for pro-se defendants, it is certainly advisable to have an attorney assist in the preparation and filing of the application. This is both to ensure that the application is filled out correctly and to ensure that the applicant has adequately accepted responsibility for the offense without making admissions that might damage his chances of acceptance. It is also advisable because an experienced attorney who knows the particular prosecutor handling the case may have some insight as to what types of information will be more appealing to that prosecutor.
The prosecutor will review the application for the Pre-Trial Intervention Program and will contact the attorney about tentative approval into or rejection from the program. If the answer is tentative approval into the PTI Program, an assessment will then be scheduled with Sharon Guzman which will cost $100.00. The assessment is to determine whether the person is a low risk to re-offend, and if so, what type of counseling classes a person needs to do while in the PTI to be successful going forward. If the application is rejected, the attorney can request reconsideration and can even visit with a higher up prosecutor to pitch the client’s application.
As long as Ms. Guzman agrees that PTI is appropriate, the County Attorney will then set up a contract signing date to formally start the diversion period. The requirements for PTI participants typically include community service hours, educational classes or counseling relating to the offense, and an agreement to abstain from further illegal behavior. These requirements are very similar to what would have been required if the case had resulted in a formal probation. PTI is an “informal” probation in that the participant reports by e-mail rather than in person, and completes his requirements on his own, as opposed to a “formal” probation in which the probationer is told each month what to accomplish by a probation officer at an in-person meeting.
Following successful completion of the Pre-Trial Intervention Program, the case is dismissed. Except for DWI cases, the arrest record can be immediately expunged.
Folks arrested for first-time misdemeanor offenses in Williamson County, Texas should almost always consider applying to the Pre-Trial Intervention Program. The up front costs and in-program inconvenience are small prices to pay for the certainty of an expungeable dismissal.