In certain situations, active duty members and veterans of the U.S. military who suffer from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, or was a victim of military sexual trauma that occurred during or resulted from the defendant’s military services – and who are convicted of their first criminal offense in Texas – would be able to have that conviction wiped off their record automatically and for free, Rep. Terry Canales, D-Edinburg, has proposed. His measure, House Bill 322, which was approved on Wednesday, April 12, 2017 by the Texas House of Representatives on a vote of 146 to 0, now goes to the Texas Senate for its action. HB 322 also would extend these protections to eligible members of the reserves, national guard, or state guard. Having a court order the destruction of records of the conviction is known as an expungement. An expungement is currently available for certain Texans, but the costs nationwide can start around $400 and go up to $4,000, plus court costs, depending on the nature of the charge, according to CostHelper.com. Texas veterans “are being failed by current law because in many cases these wounded warriors do not get their record expunged because it requires hiring a lawyer and paying additional court fees,” added the House District 40 state lawmaker, who is an attorney. “Such costs prevent many veterans eligible for an expungement from doing so.” But under HB 332, U.S. military personnel and veterans who successfully complete a rigorous and effective series of rehabilitative programs offered through veterans courts in Texas would be able to have their record cleared of a first offense, saving them thousands of dollars and precious time. “Criminal records are like scarlet letters that a person carries for the rest of their lives,” Canales said. “Our active military personnel and veterans fight and die for us, and I believe if they mess up, they should be given special consideration under the law.” HB 322 was requested by judges statewide who oversee the state’s veterans treatment courts.
Graphic Courtesy U.S. DEPARTMENT OF DEFENSE
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U.S. military personnel and veterans suffering from mental health trauma tied to their time in the service would get key legal protections under plan by Rep. Canales approved by Texas House
By DAVID A. DÍAZ
[email protected]
In certain situations, active duty members and veterans of the U.S. military who suffer from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, or was a victim of military sexual trauma that occurred during or resulted from the defendant’s military services – and who are convicted of their first criminal offense in Texas – would be able to have that conviction wiped off their record automatically and for free, Rep. Terry Canales, D-Edinburg, has proposed.
His measure, House Bill 322, which was approved on Wednesday, April 12, 2017 by the Texas House of Representatives on a vote of 146 to 0, now goes to the Texas Senate for its action.
HB 322 also would extend these protections to eligible members of the reserves, national guard, or state guard.
Having a court order the destruction of records of the conviction is known as an expungement.
An expungement is currently available for certain Texans, but the costs nationwide can start around $400 and can go up to $4,000, plus court costs, depending on the nature of the charge, according to CostHelper.com.
(http://personalfinance.costhelper.com/expungement.html)
Texas veterans “are being failed by current law because in many cases these wounded warriors do not get their record expunged because it requires hiring a lawyer and paying additional court fees,” added the House District 40 state lawmaker, who is an attorney. “Such costs prevent many veterans eligible for an expungement from doing so.”
But under HB 332, U.S. military personnel and veterans who successfully complete a rigorous and effective series of rehabilitative programs offered through veterans courts in Texas would be able to have their record cleared of a first offense, saving them thousands of dollars and precious time.
“Criminal records are like scarlet letters that a person carries for the rest of their lives,” Canales said. “Our active military personnel and veterans fight and die for us, and I believe if they mess up, they should be given special consideration under the law.”
A “scarlet letter” is a stigma someone bears for a misdeed he or she has committed. The term often refers to an ongoing, public shame forced upon a person as a means of ostracizing him or her. Those branded with a scarlet letter feel the punitive vengeance of an unforgiving society.
(https://www.gotquestions.org/scarlet-letter.html)
Expungement is intended to help people (particularly those who were not convicted or who successfully completed probation) who have made past mistakes but are now law-abiding; the goal is to keep their life on track by freeing them from the border of a criminal record, according to CostHelper.com. Generally, expungement destroys records, while officially “sealing” them makes them inaccessible (they don’t show up on a routine background check) except in special circumstances.
Currently, to initiate the expunction process, a defendant, often with the assistance of an attorney, must file a Petition for Expunction, Order Setting Hearing and Agreed Order of Expunction.
HB 322 was requested by judges statewide who oversee the state’s veterans treatment courts.
“House Bill 322, as approved by the Texas House of Representatives, would set up a process whereby a veteran who completes a veterans court program would get a free, automatic expunction upon completion of the program with approval of the veterans court judge and with sign-off from the district attorney,” said Canales.
The bill analysis of HB 322, developed by the nonpartisan House Research Organization, which is the research arm of the Texas House of Representatives, provided lawmakers and the public with detailed background on the legislation.
According to the HRO:
• Code of Criminal Procedure, art. 55.01 entitles a person who has been arrested for the commission of either a felony or misdemeanor to have all records and files relating to the arrest expunged in certain instances. Some circumstances that may result in expunction of arrest records include an acquittal following a trial, a pardon following a conviction, or an indictment that was dismissed or quashed for various reasons; and
• Government Code, ch. 124 establishes the veterans treatment court program, a specialty court program through which pending criminal cases involving veterans or members of the armed forces may proceed under some circumstances. If a veterans treatment court determines that a dismissal is in the best interest of justice after the defendant has completed the program, the original court in which the case is pending is required to dismiss the case.
Under this proposed new state law, a defendant is eligible to participate in a veterans treatment court program only if the attorney representing the state consents to the defendant’s participation in the program, and if the court in which the criminal case is pending finds that the defendant is a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard.
Such a defendant must be determined to suffer from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, or was a victim of military sexual trauma that occurred during or resulted from the defendant’s military services, and affect the defendant’s military service;
or
Such a defendant whose participation in a veterans treatment court program, considering the circumstances of the defendant’s conduct, personal and social background, and criminal history, is likely to achieve the objective of ensuring public safety through rehabilitation of the veteran in the manner provided by Section 1.02(1), Penal Code.
Canales serves as the primary author of HB 332, with Rep. Rick Miller, R-Sugar Land, Rep. Terry Wilson, R-Marble Falls, Rep. Hugh D. Shine, R-Temple, and Rep. César Blanco, D-El Paso, serving as joint authors.
The legislator who files a bill and guides it through the legislative process is the author (also called the primary author). The Senate allows multiple primary authors for each bill or resolution. The House of Representatives allows only one primary author, the house member whose signature appears on the original measure and on the copies filed with the chief clerk.
Both chambers also have coauthors, and the house of representatives has joint authors.
Coauthors of HB 332 were Rep. Briscoe Cain, R-Deer Park, Rep. Nicole Collier, D-Ft.Worth, Rep. Donna Howard, D-Austin, Rep. Joseph “Joe” Moody, D-El Paso, Rep. Justin Rodríguez, D-San Antonio, and Rep. Armando Walle, D-Houston.
Canales said in 2012, CBS’ 60 Minutes broadcast a news segment, titled “Coming home: Justice for our veterans”, that provides good insights into how a veterans court works in Texas, and why they are important.
The 13-minute episode is available online at:
The complete version of the House Research Organization bill analysis of HB 332 follows:
The HRO bill analysis follows:
HOUSE RESEARCH ORGANIZATION
TUESDAY, APRIL 11, 2017
SUBJECT: Establishing automatic criminal record expunction for certain veterans
COMMITTEE: Defense and Veterans’ Affairs — favorable, without amendment
VOTE: 7 ayes — Gutierrez, Blanco, Arévalo, Cain, Flynn, Lambert, Wilson; 0 nays
WITNESSES:
For — Douglas Smith, Texas Criminal Justice Coalition; (Registered, but did not testify: Lashondra Jones, Catholic Charities; Ellen Arnold, Goodwill Central Texas, Texas Association of Goodwills; Andrea Keilen and Shea Place, Texas Criminal Defense Lawyers Association)
Against — None
BACKGROUND:
Code of Criminal Procedure, art. 55.01 entitles a person who has been arrested for the commission of either a felony or misdemeanor to have all records and files relating to the arrest expunged in certain instances. Some circumstances that may result in expunction of arrest records include an acquittal following a trial, a pardon following a conviction, or an indictment that was dismissed or quashed for various reasons.
Government Code, ch. 124 establishes the veterans treatment court program, a specialty court program through which pending criminal cases involving veterans or members of the armed forces may proceed under some circumstances. If a veterans treatment court determines that a dismissal is in the best interest of justice after the defendant has completed the program, the original court in which the case is pending is required to dismiss the case.
DIGEST:
HB 322 would establish a process for the automatic expunction of arrest records for defendants who had completed a veterans treatment court program under certain conditions. If upon a defendant’s successful completion of a program the veterans treatment court determined that a dismissal was in the best interest of justice, it would have to provide the trial court information about the dismissal, including all information required for a petition for expunction. If the trial court was a district court, it would have to enter an order of expunction within 30 days after a case was dismissed. Otherwise, the trial court would be required to forward the appropriate dismissal and expunction information to a district court in the same county. A court would be required to waive any fee or cost associated with the expunction.
SUPPORTERS SAY:
The bill would take effect September 1, 2017, and would apply to a person who successfully completed a veterans treatment court program before, on, or after that date. The section relating to fees charged or costs assessed for an expunction order would apply only to an order entered on or after September 1.
HB 322 would entitle veterans who successfully completed a veterans treatment court program to have their arrest records automatically expunged for no cost, which would help veterans lead a productive life by allowing them to return to the workforce and housing market without a record.
Many veterans face challenges when returning to civilian life that often are exacerbated by a mental illness or disorder resulting from their military service. These conditions can lead to substance abuse issues and involvement in the criminal justice system, which can result in a criminal record that limits the veteran’s job and housing opportunities. Veterans treatment courts offer a treatment-based program that involves intensive psychological and drug and alcohol counseling aimed at rehabilitation and reducing recidivism.
Participation is subject to the consent of the prosecuting attorney, and most participants are veterans or current military personnel who suffer from a brain injury or mental illness or disorder or were victims of sexual trauma related to military service that affected the defendant’s criminal conduct at issue in the case. Establishing a process for automatic expunction would further the mission of these programs by creating an incentive for eligible veterans to improve mental health recovery and enable successful re-entry into the community.
A veteran already entitled under current law to have his or her records expunged by completing a veterans treatment court program may delay or avoid petitioning for expunction due to high costs. The procedure for expunction requires filing a petition, often with the assistance of an attorney, and paying court and processing fees. These costs can be onerous when added to those already associated with the treatment court, including drug testing, counseling, and probation fees. HB 322 would relieve this cost burden for veterans who had completed treatment court programs and would expedite the process for those already eligible. Courts already process automatic expunctions in certain cases. In these situations, fees are waived regardless of a defendant’s ability to pay. This bill merely would extend this existing practice to all veterans who complete the veterans treatment court program.
OPPONENTS SAY:
HB 322 would require an unnecessary automatic fee waiver. Defendants seeking record expunction already have the ability to petition for a fee waiver due to financial hardship, and a judge has the discretion to waive the fees upon a determination of indigence or at the request of an attorney.
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Rep. Terry Canales, D-Edinburg, represents House District 40 in Hidalgo County, which includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426.
