               IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 13-0161
                                         444444444444


                              IN RE THE STATE BAR OF TEXAS


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                             ON PETITION FOR WRIT OF MANDAMUS
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                                    Argued February 6, 2014


       JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT , JUSTICE
GREEN , JUSTICE JOHNSON , JUSTICE GUZMAN , JUSTICE LEHRMANN , and JUSTICE BROWN joined.

       JUSTICE BOYD filed a concurring opinion, in which JUSTICE WILLETT joined.


       A person wrongfully arrested for a crime “is entitled to have all records and files relating to

the arrest” expunged, if certain conditions are met. TEX . CODE CRIM . PROC. art. 55.01(a). One such

condition is an acquittal. Id. art. 55.01(a)(1)(A). The statute thus serves to protect wrongfully-

accused people by eradicating their arrest records.

       In this original mandamus proceeding, the Commission for Lawyer Discipline complains that

a former prosecutor, facing allegations of prosecutorial misconduct, has used an expunction order

to block the Commission’s prosecution. A district court has refused the Commission access to

expunged criminal records for use in the disciplinary proceeding against the former prosecutor and

has ordered the Commission to turn over investigative records. The grievance panel in the collateral

disciplinary proceeding has construed the district court’s actions as a bar to the disciplinary
proceeding and granted the former prosecutor’s summary judgment motion. Because we conclude

that the expungement order does not bar the Commission from using records from the criminal trial

in the grievance proceeding, we conditionally grant the writ.

                                                  I

       This mandamus relates to a disciplinary proceeding against former prosecutor Jon L. Hall,

who allegedly suppressed exculpatory evidence in an aggravated robbery prosecution. The

Commission’s involvement began in November 2011, when it received a news article about the

aggravated robbery trial. The article reported that Joshua Bledsoe was acquitted because the

prosecutor suppressed exculpatory evidence.

       The Commission began by interviewing, among others familiar with the case, the judge who

presided over the trial and the attorney who represented Bledsoe. Shortly thereafter, the Commission

anonymously received a partial trial transcript that included discussions between the trial judge and

counsel regarding the prosecution’s suppression of evidence, including a 911 tape.

       In that tape, the robbery victim made statements that she later contradicted during trial. At

trial, the victim identified Bledsoe as one of the robbers based partially on his race, but in the 911

call, the same witness claimed that she could not provide any description of the robbers, including

race, because they wore masks.

       Following its investigation, the Commission commenced a disciplinary action against Hall,

the lead prosecutor in the aggravated robbery case, and Vikram Vij, an assistant prosecutor. The

Commission subsequently dismissed the action against Vij. Hall elected to have his disciplinary

action proceed before a grievance panel rather than in district court.

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       In answer to the Commission’s evidentiary petition, Hall complained that he did not have

access to records necessary to his defense because all records from the aggravated robbery case had

been expunged. After receiving Hall’s answer, the Commission, with Bledsoe’s consent, filed a

motion in the trial court that had presided over the criminal prosecution and signed the expunction

order. The motion sought access to the expunged records for use in the pending disciplinary action.

Although Hall had complained about not having access to the criminal-case records, he nevertheless

responded to the Commission’s motion by urging the trial court to deny access to the expunged

records.

       The Commission’s motion was assigned to a visiting judge, sitting by assignment for the trial

court. Following a hearing, the visiting judge concluded that the underlying expunction order

precluded the Commission from relying on any of the expunged records and ordered the Commission

to turn over all information in its possession related to Bledsoe’s arrest, including the partial trial

transcript. The order also barred for any purpose “any document or other evidence derived from the

underlying criminal case and subject to the District Court’s expunction order or derived from the

arrest of J.B. and subject to the District Court’s expunction order.”

       Meanwhile, in response to Hall’s requests, the grievance panel chair ordered restrictions on

the Commission’s discovery in the disciplinary action. The order recited that the Commission could

not acquire or use any documents or other evidence related to the underlying criminal case and

expungement order until the trial court amended the expungement, if it did. Hall subsequently

moved to strike the evidentiary petition, to dismiss the disciplinary proceeding, and for summary

judgment. The Commission sought a stay so that it could seek relief from the trial court’s order.

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The grievance panel denied the Commission’s stay request and, based on the trial court’s order,

granted Hall’s summary judgment motion.

       The Commission has appealed the panel’s summary judgment to the Board of Disciplinary

Appeals and has sought review of the trial court’s order in the court of appeals. The Commission

advises that both reviews have been stayed, pending our review of the Commission’s petition for writ

of mandamus.

       The Commission submits that mandamus relief in this Court is appropriate because the court

of appeals cannot redress the ultimate consequence of the trial court’s order—the dismissal of the

Commission’s disciplinary action. That dismissal can only be challenged in a separate appeal to the

Board of Disciplinary Appeals. The Commission submits that the attendant risk of conflicting

appellate decisions that can only be reconciled in this Court suggests the present mandamus as the

appropriate remedy. See, e.g., In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003)

(concluding that mandamus was the appropriate remedy to correct district court’s interference in the

regulation of the legal practice). We turn then to that review.

                                                 II

       Expunction is not a right; it is a statutory privilege. T.C.R. v. Bell Cnty. Dist. Attorney’s

Office, 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.). The expunction statute is an

exception to the established principle that court proceedings and records should be open to the

public. See, e.g., Express-News Corp. v. MacRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio

1990, orig. proceeding) (recognizing constitutional right to public trials and presumptively open

court records); TEX . CODE CRIM . PROC. art. 1.24 (requiring public trials). The statute is designed

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to protect wrongfully-accused people from inquiries about their arrests. See Ex parte S.C., 305

S.W.3d 258, 263-64 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating “statute was enacted

to prevent the record of a wrongful arrest from negatively impacting a person for the remainder of

his life”).

        The statute provides for a truncated expunction procedure that requires neither filing a

petition nor a hearing. TEX . CODE CRIM . PROC. art. 55.02 §1. The truncated procedure commences

with a defendant’s request for expunction, such as a request made orally on the record by defense

counsel. Id. The acquitted defendant must provide the trial court with certain information, including

a list of all officials and agencies to be named in the expunction order and notified of the expunction

proceedings. Id. art. 55.02 §§1, 2(b). Within thirty days of acquittal, the trial court is to enter the

expunction order, which is prepared and filed by defense counsel or by the prosecutor, if the

acquitted defendant is not represented by counsel. Id. art. 55.02 §1. The court clerk then sends a

certified copy of the expunction order to the Department of Public Safety and to each of the officials

and agencies named in the order. Id. art. 55.02 §3(c).

        “On receipt of the order, each official or agency or other governmental entity named in the

order” is required to return to the court all records and files that are subject to the order or, if their

return is impracticable, to obliterate all information identifying the acquitted defendant. Id. art.

55.02 §5(a)(1). Any of the entities named in the order may appeal the order as in civil cases

generally. Id. art. 55.02 §3(a). The clerk is directed to destroy the collected files and records in

some cases, but the files and records are not destroyed in the case of an acquittal. Id. art. 55.02



                                                    5
§5(d). In acquittal cases, the clerk maintains the expunged records and files but generally only the

acquitted defendant has access to them. Id. art. 55.02 §5(c).

       Expunction, however, is not absolute. The statute provides for exceptions, permitting the

retention of records and files, if they may be needed in future criminal or civil proceedings. Id. art.

55.02 §4. Article 55.02 provides two exceptions for acquittal cases which apply if “(1) the records

and files are necessary [to investigate and prosecute] a person other than the person who is the

subject of the expunction order; or (2) the state establishes that the records and files are necessary

for use in (A) another criminal case . . .; or (B) a civil case, including a civil suit or suit for

possession of or access to a child.” Id. art. 55.02 §4(a-2)(1), (2).

                                                  III

       Bledsoe was acquitted in the underlying criminal prosecution on June 17, 2011. Despite the

statute’s directive that the court enter the expunction order “not later than the 30th day after the

acquittal,” the expunction order was not signed until December 28, 2011. By that time, the

Commission’s preliminary investigation into prosecutorial misconduct was virtually complete. The

Commission, of course, had no direct connection to the criminal prosecution and no apparent

knowledge of the expunction proceedings. The expunction order did not name the Commission as

a respondent in possession of records to be expunged. Nor did the order make an exception for the

Commission to use expunged records in its prosecution.

       The Commission filed its Original Evidentiary Petition in the disciplinary proceeding in July

2012. Hall answered in August, complaining that the expunction order handicapped his ability to

defend himself. In response, the Commission moved to modify the expunction order in the criminal

                                                  6
trial court. The motion recited that the Commission had recently learned of the order’s possible

existence but that it had not been served with a certified copy of the order nor been given notice of

an expunction hearing. See TEX . CODE OF CRIM . PROC. art. 55.02 §3(c). The Commission requested

access to records and files in the underlying criminal case for the purpose of prosecuting disciplinary

proceedings against third parties.

          The trial court denied the request. It further ordered the Commission to turn over any

material in its investigation file related to Bledsoe’s arrest and broadly ordered the Commission not

to use any evidence derived from the underlying criminal case in any manner. This order, signed by

the visiting judge on December 11, 2012, is the subject of the Commission’s request for mandamus

relief.

          The Commission argues that the court’s order perverts the expunction statute’s purpose. It

submits that a statute designed to protect an acquitted defendant’s reputation has been applied to

impede the disciplinary prosecution of the person accused of violating the acquitted defendant’s

rights. The Commission further notes that the acquitted defendant fully supports the Commission’s

use of the expunged records in the disciplinary case against the former prosecutor. In fact, the

acquitted defendant filed a brief supporting the Commission’s mandamus petition in this Court, and

his lawyer appeared at oral argument. The Commission concludes that the court’s application of the

expunction statute is a clear abuse of discretion because it ignores the acquitted defendant’s wishes,

contravenes the statute’s primary purpose, and interferes with the Commission’s ability to prosecute

the disciplinary action before the grievance panel.



                                                  7
        We agree that the court’s December 11 order, denying the Commission’s request to use

expunged records in the disciplinary action, is an abuse of discretion. A person can, in effect,

“unexpunge” his records by putting those records at issue in another proceeding. See, e.g., W.V. v.

State, 669 S.W.2d 376, 378-79 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (holding that retention

of files was not necessary to afford protection from potential civil action because expunged records

would be held by district clerk and could be retrieved if needed for subsequent proceedings); see also

Thomas v. City of Selma, 2006 WL 2854405 *3 (W.D. Tex. Oct. 4, 2006) (holding that district clerk

must produce arrest records for use in suit based on arrest). Bledsoe has done precisely that, making

his arrest and prosecution a matter of public record, by filing a federal lawsuit against Hall and other

defendants based on his arrest and prosecution. The Commission advises that Hall filed the full

transcript of Bledsoe’s trial as a summary judgment exhibit in federal court and that it is publicly

available on the Internet. See Bledsoe v. Galveston Cnty. Dist. Attorney’s Office, No. 4:13-CV-

00469, Document 52-2 (S.D. Tex. filed Feb. 21, 2013) (available at https://www.pacer.gov).

        The Commission argues that if an acquitted defendant can make expunged records public by

filing a lawsuit based on his wrongful prosecution, he should likewise be able to make the records

public by participating in a grievance proceeding based on the wrongful prosecution. Thus, if Hall

can use the expunged records to defend himself in federal court, he can also use them to defend

himself in the disciplinary action. And, if Hall has the right to use the expunged records, they should

also be available to the Commission. The acquitted defendant supports the Commission’s use of the

expunged records in the disciplinary case, and we conclude that he has the right to voluntarily waive

his expunction rights for this purpose. In re Expunction of Jones, 311 S.W.3d 502, 505 (Tex.

                                                   8
App.–El Paso 2009, no pet.) (citing TEX . CODE CRIM . PROC. art. 1.14(a)). We conclude further that

the court abused its discretion in disregarding the acquitted defendant’s voluntary waiver,

particularly in light of the Commission’s expressed need for the records to prosecute the disciplinary

proceeding.

       The expunction statute’s purpose is not to eradicate all evidence of wrongful conduct. See

Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 917-18 (Tex. App.–San Antonio 2011, pet. denied)

(holding that a police officer’s eyewitness testimony in a contested case administrative hearing was

not barred by an expunction order issued before the hearing, but after the administrative petition);

Ex parte S.C., 305 S.W.3d at 266 (holding an expunction order overbroad because it included state

securities board’s investigation records mentioning S.C.); Bustamante v. Bexar Cnty. Sheriff's Civil

Serv. Comm'n, 27 S.W.3d 50, 53-54 (Tex. App.–Austin 2000, pet. denied) (concluding that civil

service commission did not rely on expunged records or files but on officers’ testimony about their

personal observations). The statute thus cannot reasonably be construed to apply to all investigative

files and records generated by a state agency, like the Commission in this case.

       The grievance panel, however, interpreted the visiting judge’s order as precluding the

Commission from proceeding in the disciplinary action. The Commission argued against that

construction and presented evidence independent of the expunged records, including the affidavit

from the judge who presided over the criminal trial, but to no avail. The panel chair concluded that

there was “no way we can get the evidence” and that “as [the trial court’s] order stands, then we have

to grant the no-evidence motion for summary judgment.”



                                                  9
        In barring the Commission’s use of any document or other evidence derived from the

underlying criminal case, the court construes the expunction statute at odds with the acquitted

defendant’s interests. A process intended to protect acquitted defendants has been used as a shield

against charges of prosecutorial misconduct. Moreover, the court’s order fails to consider that an

expunction order may except records needed for future investigations and proceedings by a

prosecutor or a law enforcement agency. TEX . CODE CRIM . PROC. art. 55.02 §4(a-2). The exception

extends not only to criminal matters, but to civil cases as well. Id. art. 55.02 §4(a-2)(2)(B). And,

as already mentioned, an acquitted defendant who obtains an expunction may subsequently waive

the statute’s protection. Given the waiver expressed by the acquitted defendant, the relevance of the

expunged records to the disciplinary proceeding, and the Commission’s expressed need for those

records, the trial court abused its discretion by extending the expungement order to the Commission

and thereby interfering in the disciplinary proceeding.

        An order that directly interferes with the Commission’s ability to collect and present evidence

is as much a direct interference in the disciplinary process as an order directed to a grievance panel

itself. See State Bar of Tex. v. Jefferson, 942 S.W.2d 575 (Tex. 1997) (orig. proceeding) (granting

mandamus relief against district court that enjoined disciplinary proceedings before a grievance

panel); State v. Sewell, 487 S.W.2d 716 (Tex. 1972) (orig. proceeding) (same). Because the court’s

order interferes with the disciplinary process, disrupting the regulatory scheme promulgated by this

Court to govern cases of attorney discipline, we conditionally grant relief and direct the trial court

to vacate its order of December 11, 2012. We are confident the district court will comply, and the

writ will issue only if it does not.

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                                          __________________________
                                          John P. Devine
                                          Justice

Opinion Delivered: August 22, 2014




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