By Royce West
Texas Senate

The number is in the hundreds I'd say, if asked how many people have contacted my office or spoken to me personally saying, 'I was told that if I completed deferred, I wouldn't have a criminal record.' Their problem is twofold. Texas law allows public access to criminal history records. Secondly, technology and an entire industry are now in place that didn't exist when deferred adjudication was created 35 years ago.

To refresh, deferred adjudication is a judicial option available to defendants, prosecutors and the courts in criminal cases. Rather than accepting "straight" probation, which carries a conviction, defendants may be offered the chance to have the case dismissed upon successful completion of court-ordered supervision. There is no conviction.

In theory, it allows a person who may indeed have violated the law, a chance to consider the consequences of their misstep, show their willingness to comply with the law, and if successful, proceed with their lives without the stigma and ramifications of a criminal conviction.

Each of these callers and a possible two million other Texans who have upheld their agreements through completion of deferred, either have or could come face-to-face with those ramifications. Employers hesitate to hire persons who have criminal records. Apartments may deny residency to applicants. And certain occupational or professional licenses are also at risk.

In 2003, we were able to pass into law SB1477. It allows records of offenses for which the subject has successfully completed deferred adjudication to be sealed from the public via an order of nondisclosure. The law requires a defendant to petition the courts in the county of the offense to have the record sealed at various junctures after completing probation, depending on the category of the offense. While the records are ordered not to be made public by background check companies, law enforcement, the courts, school districts, cities, counties, certain state agencies, licensing entities and professions maintain access.

A biennial report by the Texas Department of Public Safety, says that 6,775 orders of nondisclosure were issued statewide in 2008 and 2009. Since the law went into effect in September 2003, nearly 21,000 (20,891 as of Dec. 31, 2009) subjects have taken advantage of this provision.

While orders of nondisclosure have been criticized for not going far enough, or covering enough offenses, I would counter that not enough of those who are eligible have taken advantage of the only remedy currently on the books under Texas law.

Before and since SB1477, bills filed that would expunge the records of a completed deferred have not been successful. And no doubt, bills will be filed during the 82nd legislative session that starts in January to do the same.

I understand the frustrations of those impacted. I have and will continue to work on their behalf to find greater avenues for relief. For example, a company that releases the records of an offense more than 90 days after it has been sealed or expunged is civilly liable and can face state sanctions. Another bill I authored gives a person who has had a record sealed the right to not disclose the offense on a job application. And since last session, most state agencies can no longer automatically deny a license because an applicant accepted deferred. For the fourth time, I have also filed a bill that will give the governor the power to pardon a person who received deferred adjudication.

A fact to consider for those who feel betrayed by deferred adjudication is that at the least, some measure of relief exists. Persons who have been incarcerated or even accepted probation can only hope for a pardon. This is also an issue that I plan to address in coming months.

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