Addressing the Issues of Cyberharassment

In general, criminal activity has followed the global rise in personal usage of the internet; as more of our information becomes digitized, the risks of theft and fraud grow proportionately. With the rise of virtual social networking a new issue has evolved: personal attacks involving intimidation and harassment through the various digital networks that are now a part of our lives.

Prior to the advent of public internet access various pieces of legislation had been enacted on both State and Federal levels to deal with harassment. Although freedom of speech is protected by the First Amendment, a spoken or written "true threat" is criminalized due to the intent to harm or intimidate. The US Supreme Court definition of "true threat" is "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group". Unfortunately the Court has not clearly defined a test for determining what types of speech constitute a true threat, and as a result the lower courts have been left to adopt various tests to determine whether speech constitutes a true threat.

Social Networking in the Digital Age 

Beginning in the late 1980s Bulletin Board Systems (BBS) began to gain popularity on the then fledgling internet as a text-based means of social interaction. Because the majority of users were limited to telephone modems connecting to local hubs, BBS tended to be geographically localized and topic specific, and therefore relatively easy to moderate. Serious issues involving harassment seldom arose as individual users were readily identifiable. However, by the 1990's the advent of extended services such as CompuServe and AOL not only provided instant e-mail communication to a large segment of the public, but also offered a plethora of open forums in which strangers were able to interact under relative anonymity. Instances of harassment and intimidation by individual users began to escalate, and because of the sheer volume of traffic these incidents became increasingly difficult to regulate. As new technology was introduced users were provided with options such as live chat, video conferencing and instant messaging which are virtually unregulated and often lack sufficient security to ensure privacy.

By the early 21st century true digital "social networking" as we now know it had come into use with the introduction of portals such as MySpace which were specifically designed to encourage users to share personal information. Backed by large scale media campaigns these systems have now attracted millions of users who often fail to realize their vulnerabilities and lack of privacy. Combined with advances in internet search capabilities which allow access to large amounts of information on virtually anyone who is active online, this has led to an unprecedented increase in online harassment and predation.

Cyberharassment, Cyberstalking and Cyber-Bullying 

Three terms are generally accepted in addressing intimidation and harassment over digital networks:

Cyberharassment itself is defined as speech or text that directs obscenities and /or derogatory comments at specific individuals, focusing for example on gender, race, religion, nationality or sexual orientation, however on a federal level it is usually used in a context specifically dealing with obscenities of a sexual nature. The definition of "harassment" must meet the criterion that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress.
Cyberharassment differs from cyberstalking in that it may generally be defined as not involving a credible threat. Some states approach cyberharassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone statutes. On the Federal level, the Interstate Communications Act (18 U.S.C. § 875(c)) criminalizes the making of threats via Internet.


Cyberstalking is the use of electronic means to stalk or harass an individual or a group of individuals and often (but not exclusively) applies to cases in which the victim is an adult. It may include defamation, monitoring, threats or gathering information that may be used to harass. Cyberstalking is separate from spatial or offline stalking, however the two are often combined and both are criminal offenses. Cyberstalking is a criminal offense that comes into play under state anti-stalking laws, slander laws, and harassment laws. The current US Federal Anti-Cyber-Stalking law is found at 47 USC sec. 223. A majority of states also have laws that explicitly include electronic forms of communication within spatial stalking or harassment laws. In addition, most law enforcement agencies have cyber-crime units and often Internet stalking is treated with more seriousness than reports of physical stalking. Cyberstalking may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Sanctions range from misdemeanors to felonies.  

Cyberbullying is the use of the Internet and related technologies to harm other people, in a deliberate, repeated, and hostile manner and often (but not exclusively) applies to cases in which the victim is a juvenile. Cyberbullying has been defined by The National Crime Prevention Council: “When the Internet, cell phones or other devices are used to send or post text or images intended to hurt or embarrass another person." There are laws that only address online harassment of children or focus on child predators as well as laws that protect adult cyberstalking victims, or victims of any age: currently, there are more than 45 cyberstalking (and related) laws on the books.
School safety is also an increasing focus of state legislative action: school bullying and harassment policies are being supplemented to provide students protection from cyberbullying.

Federal Cyberstalking Laws 

Federal law provides a number of important tools to combat cyberstalking. As previously mentioned, the Interstate Communications Act (18 U.S.C. § 875(c)) forbids the transmission of "any communication in interstate or foreign commerce containing a threat to injure the person of another" and this has been determined to include threats via the telephone or Internet. Violations are punishable by up to five years in prison and a fine of up to $250,000. However, 18 U.S.C. 875 applies only to communications of actual threats: it would not apply in a situation intended only to harass or annoy another (absent some threat). Also, it is not clear that it would apply to situations involving the use of public forums such as chat rooms to encourage others to harass or annoy another person.

Certain forms of cyberstalking may also be prosecuted under the Communications Decency Act (47 U.S.C. 223), which includes a provision making it a federal crime to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number. Although this statute is broader than 18 U.S.C. 875 in that it covers both threats and harassment, Section 223 applies only to direct communications between the perpetrator and the victim and also would not apply to a situation involving messages in public forums. Moreover Section 223 is only a misdemeanor and punishable by not more than two years in prison.

The Interstate Stalking Act (18 U.S.C. 2261A) makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person's family in a reasonable fear of death or serious bodily injury. Although a number of serious stalking cases have been prosecuted under Section 2261A, the requirement that the stalker physically travel across state lines makes it largely inapplicable to cyberstalking cases.

Finally, the Protection of Children from Sexual Predators Act (18 U.S.C. 2425) makes it a federal crime to use any means of interstate or foreign commerce (such as the Internet) to knowingly communicate with any person with intent to solicit or entice a child into unlawful sexual activity. While this new statute provides important protections for children, it does not cover harassing phone calls to minors absent a showing of intent to entice or solicit the child for illicit sexual purposes.

Current statutes address some forms of cyberstalking, but there are major gaps in the federal law. The Department of Justice has expressed misgivings about the adequacy of federal law to respond to cyberstalking, as the law generally deals only with direct communication between the perpetrator and the victim; when the perpetrator persuades third parties to be become participants and vehicles of the harassment the law is inadequate. In addition, while a federal stalking law has passed, it involves instances of interstate travel; the perpetrator must travel across state lines making the law frequently inapplicable.

Cyberbullying and State Legislation 

Current research defines cyberbullying as "an aggressive, intentional act or behavior that is carried out by a group or an individual repeatedly and over time against a victim who cannot easily defend him or herself". Though the use of sexual remarks and threats are sometimes present in cyberbullying, it is not the same as sexual harassment and does not necessarily involve sexual predators: it also typically occurs among peers. In 2011 the National Crime Prevention Council reported that cyber-bullying is a problem that affects almost half of all American teens. Several high profile cases of teen suicide have been directly linked to cyberbullying, including the suicide of Ryan Halligan and the suicide of Megan Meier, the latter of which resulted in United States v. Lori Drew which charged Drew of violations of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) over the alleged "cyberbullying".

During the summer of 2006, Missouri residents Lori Drew, her daughter, and Drew's employee, Ashley Grills, allegedly decided to create a MySpace account for a non-existent 16-year-old boy in order to discover whether Meier was spreading false statements about Drew's daughter. Drew allegedly used the MySpace account to contact Meier, initiate a virtual relationship, and finally to send negative messages which were subsequently multiplied by other MySpace users, culminating in Meier's depression and suicide.
Although state prosecutors declined to press charges due to lack of evidence, the U.S. Attorney for the Central District of California undertook prosecution of federal charges in connection with the case and Drew was indicted by the Grand Jury on four counts. The first count alleged a conspiracy arising out of a charged violation of 18 U.S.C. § 371, and the others alleged that Drew violated the CFAA by accessing MySpace servers to obtain information regarding Meier in breach of the MySpace Terms of Service.

The case was heard by a jury which only found Drew guilty of a misdemeanor violation of the CFAA. U.S. District Judge George H. Wu formally granted Drew's motion for acquittal, overturning the jury's guilty verdict. In his opinion, Judge Wu stated that allowing a violation of a website's Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would "...result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals" and granted Drew's motion for acquittal.

Following United States v. Lori Drew, Missouri updated its laws to include electronic and internet harassment; many other states (as well as many counties and cities) rapidly followed suit, although the legislation varies widely in scope. Currently 38 states have enacted "cyberstalking" or "cyberharassment" laws, or have laws that explicitly include electronic forms of communication within more traditional stalking or harassment laws: however, most stalking and cyberstalking statutes require proof of a “credible threat” of violence which might not be present in instances of peer related bullying. Similar to speech and harassment laws at the federal level, individual states continue to wrestle with defining the problem and what legal actions to take when a violation occurs. Nonetheless, 34 states have enacted explicit legislation dealing with "cyberbullying". Some specifically proscribe cyberbullying as a prohibited act within the operative provision of the law, others target the broader act of bullying and include cyberbullying within the statutory definition.

Current cyberbullying laws also primarily focus on the public school setting by requiring school boards to set policies that prohibit cyberbullying. As the safety of schools is increasingly becoming a focus of state legislative action, one of the major areas of contention seems to be whether school districts can interfere in the behavior or speech of students that occurs away from campus. Many cases dealing with freedom of speech on and off school grounds have worked their way up to the United States Supreme Court.

However, states are realizing that speech or behavior committed off?campus can result in a clear disruption of the school environment and public schools equipped with trained guidance counselors may be better suited than the juvenile-justice system to address cyberbullying among youth.

Lacking clear guidance from the Supreme Court, lower federal and state courts have disagreed whether online speech created off-campus is protected. If courts determine online expression created off-campus is beyond the reach of public schools, some current and proposed cyberbullying laws may be rendered unconstitutional. Because most cyberbullying occurs off-campus, limiting cyberbullying laws to speech created on public-school campuses would seriously undermine their effectiveness in addressing the problem. Until the Supreme Court clarifies the authority of schools over online speech, legislators and educators must respond to cyberbullying in a way that avoids restricting students’ free speech rights.

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References:
Prosecuting Computer Crimes: Computer Crime and Intellectual Property Section Criminal Division, Office of Legal Education Executive Office for United States Attorneys
18 USC § 1030 - Fraud and related activity in connection with computers
Cyberbullying Enacted Legislation: 2006-2010 Legislation by State, NCSL
The History of Social Networking; September 6, 2012 by Gordon Goble (DigitalTrends.com)
The Protection of Children from Sexual Predators Act of 1998 (P.L. 105-314)
State of Texas PENAL CODE TITLE 7. OFFENSES AGAINST PROPERTY CHAPTER 33. COMPUTER CRIMES

Houston Criminal Attorney: Federal Hate Crimes Law

With the brutal murder if James Byrd Jr. in June of 1998, the small town of Jasper, Texas was thrust into the national spotlight. Previously known for little more than logging and its proximity to Lake Sam Rayburn, it would suddenly and infamously become synonymous with "...the worst hate crime of the post-civil rights era".
The facts of the case are well known; Byrd, an African-American, was chained to the back of a pickup truck and dragged to death along an isolated logging road. The three men accused and convicted of the crime, Shawn Berry, Lawrence Brewer and John King were white: Brewer and King were members of the white supremacist hate group Aryan Nations. All had prior criminal records.

Based on this knowledge law enforcement quickly contacted the FBI; the 1994 Federal Violent Crime Control and Law Enforcement Act (28 U.S.C. § 994 note Sec. 280003) required the United States Sentencing Commission to increase penalties for federal crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person. But no federal charges were ever brought; investigators concluded that Byrd 's slaying didn't violate federal hate crime laws because his constitutional rights - such as voting or attending public school - were not at issue in the crime.
John King and Lawrence Brewer were both convicted of capital murder in 1999 and sentenced to death. Brewer was executed by the State of Texas on September 21, 2011, while King remains on death row. Possibly because of a lack of evidence suggesting racist ties, Berry avoided the death penalty and was sentenced to life in prison.

Although Texas had adopted a hate crime data collection law in 1991 in response to the Federal Hate Crime Statistics Act, the program was limited by the narrow scope of information required. The statistics act was followed two years later by the 1993 Texas Hate Crimes Act (article 42.014 of the Texas Code of Criminal Procedure) authorizing enhanced punishment in cases in which the crime was motivated by the offender’s bias or prejudice, and Section 12.47 of the Texas Penal Code provides that the punishment is increased to the next highest category of offense. But the statute was criticized as being vague, overbroad, and virtually unenforceable; its definition of hate crime simply as one that is "committed because of bias or prejudice" left prosecutors with concerns about constitutional challenge.

In the Boyd case, King and Brewer were already charged with Capital Murder (and sentenced to death) so the 1993 statute was irrelevant: there were no higher categories of charge or punishment available. However, the lack of application in Berry's prosecution due to its vagueness and the abovementioned lack of evidence linking him to organized racist groups led several advocacy organizations -including the NAACP- to begin calls for new legislation on both State and Federal levels.

In 1999 State Representative Senfronia Thompson (D, Houston) introduced House Bill 938 - unofficially known as the "James Byrd Jr. Act" in memory of the Jasper murder victim. Unlike previous measures, it would specify which groups would be protected by the law; a feature that added clarity to the existing legislation but also drew complaints that it could violate the free speech and equal protection clauses of the U.S. Constitution. The bill passed in the house, but failed to pass in the senate "in a struggle so emotional and bitter it temporarily shut down that chamber for most of one day. "

At the time George W. Bush was serving as Governor of Texas (1995 - 2000) and concurrently running a Presidential campaign. In referencing his opposition to the bill he stated that Texas already had a hate crimes statute and nothing more was needed; in support of his "tough on crime" stance he also erroneously claimed that all three men indicted in Byrd's death had received the death penalty. Citing a prior commitment, Bush failed to appear at Byrd's funeral, and this combined with his apparent lack of knowledge in a case which was still gripping the nation brought the debate over hate crimes legislation to the forefront of American politics.
In reality Bush’s opposition to the bill reportedly revolved more around language which would include sexual preference as a basis for bias, and which would predictably alienate many of his supporters in the Conservative Christian block: he had supported previous amendments to the 1993 State law in 1995 and 1997.

Beginning in 2001 an expansion to the existing federal hate crime laws was proposed to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. Also inspired largely by the Byrd case, it included language very similar to that drafted in the failed 1999 Texas James Byrd Jr. Act.

Again following the national trend, Texas Governor Rick Perry finally signed the Texas James Byrd Jr. Hate Crimes Act (HB 587) into law after narrow passage in the Texas Senate the same year. The new bill expands the definition of "hate crimes" and clarifies that the law applies to race, color, disability, religion, national origin (or ancestry), age, gender or sexual preference when it is determined to be the reason a victim or their property was targeted in a crime. In those cases, the punishment can be enhanced one level under certain circumstances. The bill also provided for a "hate crimes" protective order.

On October 28, 2009 President Barack Obama signed the federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, removing the prerequisite that the victim be engaging in a federally protected activity such as voting or going to school; it gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue, and it requires the FBI to track statistics on hate crimes based on gender and gender identity as well as for the other subjects already being tracked.

However, hate crime laws remain a subject of debate on both federal and state levels. Arguments have been made that they are redundant, covering crimes that are already addressed by existing laws and therefore offer a constitutional (5th Amendment) infringement due to the possibility of double jeopardy. Others submit that they increase federal government participation in state law enforcement. On the federal level, the American Civil Liberties Union (ACLU) has expressed concerns about the possible negative impact on civil rights, fearing that prosecutors may attempt to introduce statements describing the defendant's beliefs, or organizational memberships. However, the "Rule of Evidence" section in the House version of the 2009 hate crimes bill states:
 "In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness." 

Many of the primary objections are being raised by conservative Christian groups who fear that inclusion of language recognizing sexual orientation as a basis of bias will "normalize homosexuality" or infringe on freedom of speech in cases where religious leaders condemn what they consider immoral activity. These objections may generally be dispelled by the First Amendment (US Constitution) which clearly covers freedom of speech and supersedes all state legislation.

Since the Texas Legislature adopted the Texas James Byrd Jr. Hate Crimes Act in 2001, prosecutors have only earned convictions on 10 cases according to figures from the state Office of Court Administration. Most have come in plea arrangements: only a single hate crime has been taken to a jury in Texas. There are many reasons that bias based incidents are not prosecuted as hate crimes, ranging from no arrests to crimes driven by complex motives. Additionally, although Texas' bias law can enhance prison terms it still excludes most serious crimes as the range of punishment already goes up to 99 years in prison.

Other sections of the 2001 Texas law have also gone unused: a provision allows for state funds to help prosecutors build hate cases, but no state money has ever been requested. The statute also permits local judges to issue protective orders in cases where a person's safety or property is threatened because of hate, but there are no records of it ever being implemented. Yet the law has appeared to have made a difference in a small handful of Texas cases over the past decade. In July 2004 Thomas Carroll was charged in San Antonio with three counts of arson enhanced by a hate crime; without the bias charge Carroll faced up to 20 years in prison, once it was added the sentence was raised to 99 (Carroll agreed to a 30-year plea deal). In 2005 William Rose was charged with criminal mischief in a road rage incident, punishable by up to two years in jail; because the incident was deemed racially biased he faced up to 10 years in prison and accepted a plea deal of five years. And in 2007 Shervin Mohansingh assaulted a gay man in Harris County; a misdemeanor assault charge which allows for a maximum of 180 days in jail. In January 2008, Mohansingh was sentenced to 200 days due to the hate crime law.

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References:
Hate Crimes; Glen Kercher, Claire Nolasco & Ling Wu: August 2008 Sam Houston State University
Texas hate crime law has little effect; Eric Dexheimer, Austin American-Statesman: Jan. 21, 2012
James Byrd, Jr. Hate Crimes Act Clears Major Hurdle; State Senator Rodney Ellis press release, Feb. 7, 2001
Racist Convicted in Texas Murder; Paul Duggan, Washington Post: Wednesday, Feb. 24, 1999
Media Advisory: Lawrence Russell Brewer scheduled for execution: Texas Attorney General Greg Abbott, Sept. 19, 2011
Bush angers slain man’s family; Jake Tapper, Salon.com: Oct 16, 2000
TDPS Crime Reports 1999 to Present
Hate Crime in Texas: where we've come, where we're going; Texas Civil Rights Project, Oct.1995 
State Hate Crime Laws Seek to Punish Prejudice; Senate Research Center: Feb.1999
76th Texas Legislature / Hate crimes bill gathers momentum / Vote in Texas House expands target groups; John Gonzalez, Houston Chronicle: April 28, 1999
U.S. Hate Crime Laws: Hate crime law arguments pro & con. Civil rights concerns about these laws: Ontario Consultants on Religious Tolerance

The Sixth Amendment “Confrontation Clause”

The Sixth Amendment to the Constitution confers numerous rights on the citizens of the United States in regards to their defense in a criminal prosecution. One of the most important of these is found in what is referred to as the “Confrontation Clause”, that is, the defendant’s right to be confronted by the witnesses against them in a criminal prosecution.

The importance of this right was recognized following the trial of Sir Walter Raleigh for treason in 1603. At his trial, Raleigh was convicted largely based on a letter implicating him for treason, written by alleged accomplice Lord Cobham. Despite Raleigh’s objections, Lord Cobahm was never brought before the court to testify; instead, the letter was simply read to the jury without allowing Raleigh the opportunity to cross-examine him. Raleigh was convicted by the jury, sentenced to death, and eventually executed without ever being given the opportunity to confront Lord Cobham about his claims. Later one of Raleigh’s trial judges would lament, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

Since Raleigh’s trial the defendant’s right to confront and cross-examine witnesses against him in a criminal prosecution has been regarded as paramount to conducting a fair trial. Prior to the founding of the United States, several colonial governments such as Pennsylvania, New Hampshire, Delaware, and North Carolina included the right of a defendant to confront witnesses in a criminal trial in their individual Declarations of Rights. The First Congress of the United States agreed with colonial advocates of this right and enshrined it in the Sixth Amendment of the Constitution, which reads;

 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” 

Recent Supreme Court decisions have reiterated the importance of the Confrontation Clause in the context of a criminal prosecution: these decisions have rejected attempts by the government in both State and Federal prosecutions to admit unconfronted testimony as evidence against defendants. The Supreme Court has also denied the use of recorded statements of witnesses who are unavailable to testify at trial, as well as unconfronted scientific data collected government agencies. Just as the inclusion of Lord Cobham’s letter undermined the Court of England’s ability to ascertain the truth in Sir Walter Raleigh’s trial, the Court has noted that the reliability of a witness’ testimony can only be assessed through “the crucible of cross-examination.”

Challenging the government’s use of evidence on Sixth Amendment grounds can be a complicated matter and can mean the difference between conviction and aquittal of an alleged crime. Because of the importance of this right and its application, it is crucial to be represented by an attorney capable of navigating this area of the law.

 If you have been accused of a crime, contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you, and we will work tirelessly to ensure the best possible outcome for your case.

Houston Criminal Attorney: Expunctions and Petitions for Non-Disclosure in Texas

Every day American citizens are wrongfully arrested due to mistakes ranging from simple clerical errors to over-reaction by law enforcement officers: often it is merely a case of someone being in "the wrong place at the wrong time". In other situations a person may have been arrested with probable cause only to be found not guilty, or have their charges dropped or dismissed after counseling. Most people mistakenly believe that their arrest record is erased in such instances.
However this is simply not the case: all of these events are placed on your criminal record and are made public, and even a minor offense like public intoxication or disorderly conduct can be viewed by potential employers, landlords or business concerns. In addition, nearly 2 million people in Texas have accepted Deferred Adjudication probation for misdemeanors and felony arrests with the misconception that once the probation period was over and the charge "dismissed" that it would not be on their records.

Expunctions were created as a means of allowing a person who was wrongfully arrested or accused of a crime to remove all traces of that arrest from the state's records. With a few exceptions many criminal cases that have been dismissed, rejected or declined for prosecution are eligible for expunction. Additionally, completed pre-trial diversions, "not guilty" verdicts and Class "C" misdemeanor deferred dispositions are also eligible. A Petition for Expunction is filed in District Court, and the process is actually a civil lawsuit requesting that the Court issue an order forcing specific agencies to delete, erase, or destroy their records for an individual's criminal record or specific criminal offense. If an expungement is successful an individual may legally deny being arrested in that specific case.

Not everyone has the right to have their record expunged: there are limitations on what types of charges can be removed, and each case must be reviewed to determine the qualification of the specific individual. For example, if you have actually been convicted of a crime it cannot be expunged. You cannot have plead guilty to any other charges arising out of the same criminal offense, and deferred adjudication cases cannot be expunged. You cannot petition for expunction in a case where you intentionally or knowingly absconded (“jumped bail”) after being released on bond. And people arrested for community supervision or parole violations are not eligible for an expunction.

Recent Changes to Texas State Expunction Laws:
 In 2011 the Texas State Legislature amended Chapter 55 of the Texas Code of Criminal Procedure, which governs the expunction of arrest records, court records and criminal history record information. One change is a new eligibility for persons granted relief on the basis of actual innocence: previously, a person who had been convicted but later pardoned could have their record expunged but a person who was convicted and later found to be innocent through normal legal channels could not. Another change allows the prosecutor to agree to an expunction. Prior to this amendment any agency listed in the petition (such as the Texas Department of Public Safety) could oppose it: in cases where it is obvious no charges should have been filed in the first place this removes unnecessary barriers and the Legislature agreed that the individual should not be forced to wait. One other important change removed the restrictions that prohibited an individual from receiving an expunction if they had been convicted of a felony in the five years before the arrest.

 The new law also changed the waiting periods required for obtaining an expunction of records in Texas. Previously the courts have required individuals to wait until the statute of limitations expires before applying for an expunction, which meant that in cases where there is no statute of limitation (such as murder) you could never have your record cleared even if you were absolved of the crime. There are also charges with lengthy statutes of limitation, such as sexual assaults. The legislature has now defined specific waiting periods:

•  180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors and 3 years for felonies 
•  Any time after arrest if the attorney for the State certifies that the files are not needed for any subsequent criminal prosecution, or 
•  if the limitations period has actually expired. 

The burden of course is on the applicant to prove that they were released and that charges are no longer pending. For cases that are formally filed by an indictment but are later dismissed the person must still wait until the statute of limitations expires to petition for expunction.

Deferred Adjudication and Petitions for Non-Disclosure 
A Petition for Non-Disclosure is a specific document relating only to cases involving deferred adjudication probation, which is not covered under the regular expunction laws.
Deferred adjudication is a special type of probation given to many first-time offenders in Texas. A defendant will enter a guilty plea, but the judge does not actually find the defendant guilty and instead "defers" the finding of guilt. Unlike regular or “straight,” probation which may allow people to avoid incarceration or other punishments after being convicted of a crime, deferred adjudication permits that if the person satisfactorily completes the probation period and any other requirements the charges are “dismissed” and the person does not receive a final conviction. However, if the person violates the terms of his or her deferred probation, the state can file a motion to adjudicate and the judge can sentence the person to any term within the statutory range.

It is important to note that while the person who successfully completes deferred adjudication does not have a final conviction, a record of the offense will still appear on their criminal history. In this case a non-disclosure order is required to seal their record from public view. Unlike expunctions, non-disclosures do not completely erase criminal records but instead remove them from the public domain while leaving them intact for government purposes. This particular feature is most commonly used in case the person is ever prosecuted for a crime sometime in the future. In Texas, motions for non-disclosure are granted pursuant to Section 411.091 of the Texas Government Code.

 To become eligible for Non-Disclosure, you must successfully complete your deferred adjudication probation. In a felony case you must wait five (5) years from the date of the discharge before a petition for non-disclosure can be filed. Misdemeanors including assault, deadly conduct, disorderly conduct, and unlawfully carrying a weapon may require you to wait two (2) years after the date of discharge before seeking a petition for non-disclosure, but for most misdemeanors you may file immediately after completing the probation. If the two or five year waiting period applies to your case, you must not be convicted or put on deferred adjudication for another offense during that period.

 Finally, you cannot have ever been convicted of or placed on deferred adjudication for certain offenses, including any crime that requires registration as a sex offender, aggravated kidnapping, murder, injury to a child, stalking, and/or any offense that involves family violence.

If you are granted non-disclosure, criminal justice agencies will not be allowed to disclose information about the offense and you may legally deny that you were ever arrested in the case (unless you face a future criminal prosecution). The law still allows for certain government agencies to obtain information about your offense, such as the Texas Department of Licensing and Regulation, the Texas Department of Health and the TABC.

Non-disclosure orders do not apply in a few other limited instances: i.e., if you apply for a teaching position the school may get information about your arrest, or if you apply to be a nurse or a lawyer the Boards that regulate those professions in Texas may access them. If you want to adopt a child a non-disclosure order will not apply.

 If you are ineligible for both expunction and non-disclosure there are two final ways to try to clear your record: first, you can file a writ of Habeas Corpus. Lastly you can try to win a pardon from the governor or president, although pardons are rare and difficult to achieve.

Parnham & McWilliams can help answer any and all questions you might have regarding whether something is showing up on a background check that should not be. If you are concerned that your arrest is still appearing and you would like to start the process of clearing your records, call us immediately for a free consultation at (713) 224-3967 or visit www.parnhamandmcwilliams.com for our convenient online submission form.
We can take care of all of the necessary legal details and work to help you clear your criminal record, so you can move forward with your life without worry and fear that something shows up when it should not.