Untitled Texas Attorney General Opinion ( 1973 )

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TEE ATFORNEY GENICRAL
OF TEXAS
Amarm. - V8711
March 9, 1973
Honorable Alton R. Griffin Opinion No. H-17
County Attorney _.
Lubbock County Courthouse Rc: Construction of Article
Room 202 66647(14)(f), Varnon’s.
Lubbock, Texas 79401 Texas .Penal Code, as to
a minor’s arrest record and
whether tha Justice Depart-
meat or the l?. B.L are
entitled to euch information
after a court has expunged
the conviction and other
Dear Mr. Griffin: do~cuments relating thereto.
III your request for our opinion constr.uing Article 666:17ilrl)(f),
Vernon’s Texas Penal Code, you state the following fact situation and
question:
“Almost monthly in both Justice of the Peace’ Courts
in Lubbock Couaty. Texas, as well as in Municipal Courts in
Lubbock County, Texam, minors charged with Illegal Poueess-
ion of Alcoholic Beverages pursuant to the above referenced
statute have and do bring actions to purge and/or expunge
convictions for said offenas. Further, pursuant to Justice
Department of Federal Bureau of Investigation procedures, .
requests, are made for information concerning these arrestm
and/or convictions for which is commonly known a~ a ‘rap..:..
sheet’.
-
“The problem~c6nstantly arises as to whether or not ~-
the Lubbock County Sheriff’s Office, the Lubbock County 1. ;_
Texas Highway Patrol, and the City of Lubbock Police Depart-
ment are prohibited from disclosing to the Justice Department
or the Federal Bureau of Investigation information in regard
to an arrest and/or conviction under the above referenced :.
statute. It
P. a1
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Hoaorablo Alton R. Griffin, pago 2 (H-17)
Article 666-17(14)(f), Vernon’s Texas Penal Code, reads as followr:
“Upon attaining the age of twenty-one (21) years,
any perron who: during his minority wae convicted of
not more thaa one violation of’the Texas Liquor Control
Act is eligible to have the conviction expuaged from hi!
record upon making application to-the judge of the court
in which he was convicted. The application shall contain
the applicaat’s aworn statement that duriPp his minority
he was not convicted of any violation of the Texas Liquor
Control Act other than that sought to be expunged from
his record. If it appears to the court that applicant’s
statement is true and correct, the court shall order
the conviction expunged from his record along with all
complaints, verdicts, sentences, and other documents
ralating thereto. After the court has.entered the order,
the applicant is released from>.all disabilities resulting
from the conviction, and the fact of the conviction
shall not be shown or inquired into for any purpose. ”
The language of the statute is that the “court shall order the
conviction expunged from his record along ,with all complaints,
verdicts, sentences, and other documents ielating thereto.”
“Theretot must refer ‘to “conviction”. lt ib our opinion that the
statute does not refer to records compiled at the time of arrest,
except insofar as they may be made to disclose the later con-
viction; To hold otherwise, would result in the anomalous
situation of the person arrested, but later acquitted, left witka
peimanent standing record of arreat, while the person arrested
and convicted could have his record of arrest expunged, We do
not believe this was thw3ntent of the Legislature.
The word “expunge ‘I has various shadem of,meaning such as: to..
strike out, obliterate or mark for deletion, or to cause the physical
desjruction of. Webster’s Third New International Dictionary. There
is no Texas case defining it. A California appellate court has held
it to be a physical act rather than a legal one. Andrew6 v. Police
Court of City of Stockton, 123 P.2d 128 (Cal. App. 1942) aff. 133P. 2d
398 (Cal. 1943); and see Dubnoff v. Goldstein, 385 F.2d 717 (2d cir. 1967).
P. 82
Honorable Alton R. Griffin, page 3 (H-l?),
We must conclude that the Legislature used the word “expunge”
knowirg its meaning. In other similar situations it has provided,
for instance, that the verdict or plea of guilty may be “set aside”
and the complaint, etc., “dismissed” (Art. 42.U. Sec. 7, Vernon’s
Code of Criminal Procedure, the Adult Probation and Parole Law);
or that the court may enter an order “setting aside” the finding
of guilty and “dismissing” the accusation or complaint after which
the finding of guilty may not be considered for any purpose (Ar.t. 42.13,
Vernon’s Texas Code of Criminal Procedure, the Misdemeanor
Probation Law). Such expressions have a more limited effect. The
choice by the Legislature of the word “expunge” rather than language
much as that used in eithsr of the other two statutes must indicate
an intention upon its part that the recordr actually be destroyed or
obliterated.
Obviously the act applies to the records of the applicant in the
court where he was convicted. Were the reference to “his records”
taken literslly. it would result in the court being instructed to order
those over whom it has no jurisdiction to affirmatively expunge the
conviction form “his” records within their custody. We cannot
assume the Legislature intended such a result, and muat limit the
scope of the order that the conviction be expunged to records directly
within the control of the court.
However, the last sentence of the Article,. i. e., “After the Court
has entered the order, the applicant is released from all disabilities
resulting from the conviction, and the fact of the conviction shall
not be shown or inquired into for any purpose, ‘I is not directed
solely to the court, but is directed to all those persons who might
have at their disposal records showing the conviction. It is our.
opinion that any person having such records within his control and
having knowledge that a conviction has been expunged, is subject to
the provieionr of the statute and is prohibited from showing’tbe “fact
of the conviction . . . for any purpose.”
From the foregoing, we conclude that it was the intention of the
Legislature that the applicant’s record of conviction be “expunged”
from all records and that no one either show or inquire into it for
any purpose. Thus, to answer your specific questions, the Lubbock
County Sheriff’s Office, the Lubbock County Texas Highway. Patrol,
P. 83
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Honorable Alton R. Griffin, page 4 (H-17) .
and the City of Lubbock Police Department, once they were placed
on notice of the court’8 order under Article 666-17(14)(f), V. T. P. C.,
would be prohibit&d from dis8eminating information concerning
the conviction, but not the arrest, of a perron whose conviction
had been expunged from his record pursuant to that Article.
SUMMARY
Article 666-17(14)(f), Vernon’s Texa8 Penal Code
reache8 all records of conviction of a pereon under
the age of 21. convicted of not more than one violation
of the Texa8 Liquor Control Act and, if the court
enter8 an order expunging ouch a conviction from
the applicant’8 record, no one subject to the juris-
diction of thi8 atate, including those attached to a
Sheriff’s Office, the Highway Patrol or a Police
Department may legally communicate or make reference
to the fact of the conviction in any manner or to any
other pereon or organization.
Very truly youri.
Attorney General of Tkxas
DAVID hf. KENDALL. Chairman
Opinion Committee
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