Donovan, Lawrence
Opinion
PD-0474-14
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 7/15/2015 9:47:59 AM July 15, 2015 Accepted 7/15/2015 10:00:20 AM ABEL ACOSTA
PD-0474-14 CLERK
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
LAWRENCE DONOVAN
Petitioner
v.
STATE OF TEXAS
Respondent
On Appeal from the
Court of Appeals for the Second District Fort Worth Texas
Cause No. 02-11-00033-CR
MOTION FOR REHEARING
John H. Cayce, Jr.
State Bar No. 04035650
john.cayce@kellyhart.com
KELLY HART & HALLMAN LLP
201 Main Street, Suite 2500 Fort Worth, Texas 76102
Telephone: (817) 332-2500 Telecopier: (817) 878-9280
ATTORNEY FOR PETITIONER
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES..................................................................................... ii GROUNDS FOR REHEARING ............................................................................... 1 ARGUMENT .............................................................................................................1
PRAYER FOR RELIEF ............................................................................................6 CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2.................................... 6 CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 9.4...................................... 7
CERTIFICATE OF SERVICE ..................................................................................7
MOTION FOR REHEARING Page i
INDEX OF AUTHORITIES
State Cases Ohio v. Garry, 877 N.E.2d 755 (Ohio Ct. App. 2007).................................................................. 4
State Statutes 11 DEL. CODE § 4371 (2010) .....................................................................................5
Other Authorities Andrew L. Gates III, Comment, Arrest Records—Protecting the Innocent, 48 TUL. L. REV. 629, 634 (1974) .......................................................... 4
Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement Legislation, 39 U. Mem. L. Rev. 1, 3-4 (2008) ............................. 4
MOTION FOR REHEARING Page ii
GROUNDS FOR REHEARING
On July 1, 2015, the Court issued its unanimous Opinion affirming the
judgment of the court of appeals. (Copy attached). The Opinion effectively grants trial courts the unbridled discretion to ignore the binding legal effect of a final expunction order in revoking a condition of community supervision. In so doing, the Opinion will create uncertainty in the bench and bar about the legal rights of persons who have had their records expunged, and will jeopardize the protections Texas’ expungement laws were designed to afford individuals with expunged records. This will have a deleterious effect on society as whole by undermining one of the primary policy reasons for expunctions—to enable persons with arrest or conviction records to integrate back into society and live normal, happy lives. The Motion for Rehearing (“the Motion”) should be granted to address these serious public and jurisprudential concerns.
ARGUMENT
Mr. Donovan’s probation for injury to a child, a non-sex offense, was
revoked after he refused to “fully” participate in a sex-offender treatment program in which the treatment provider pressured him to admit to the commission of a sex offense that had earlier been the subject of a “not guilty” judgment and subsequent expunction order. 1 When Mr. Donovan and his attorneys protested that the
1 No reason was ever given to Mr. Donovan or his counsel for adding the sex-offender treatment condition to his probation.
treatment provider was violating explicit language of the expunction statute by requiring discussion of the expunged sex offense during group counseling sessions, the trial judge told the treatment provider that Mr. Donovan would not be required to “admit” the expunged offense during the group therapy meetings.2 RR.II: 14, 46.
Of course, Mr. Donovan had every reason to believe the trial judge’s instructions would be honored and that he could safely rely on her instructions in refusing to discuss the expunged offense at future meetings. Indeed, had the trial judge informed Mr. Donovan when she added the sex-offender treatment condition to his probation that he would be required to discuss the expunged offense during treatment, he would have never acquiesced to the condition being added to his probation in the first place. 3 Despite the trial judge’s instructions, however, the treatment provider continued to insist on Mr. Donovan’s admission to the expunged sex offense. RR.II: 56. Moreover, at the revocation hearing, the trial judge did an “about face”—she reversed her earlier directive that the expunction order should be honored, and announced that she now determined the order was “illegal” and “baseless.” RR.III: 8-9.
2 The record is devoid of any notice to Mr. Donovan’s defense counsel that the expunction order would be ignored by the treatment provider, or that Mr. Donovan would be required to admit to a sex offense in order to complete the program. 3 This became abundantly clear when Mr. Donovan later objected to the condition and requested that it be rescinded.
Contrary to the Court’s opinion, this Catch-22 situation resulting in the revocation of Mr. Donovan’s probation was not “within [Mr. Donovan’s] control.” Op. at 10. By allowing the revocation judgment to stand under these egregious set of facts, the Court has effectively condoned the direct violation of Texas expunction law by a trial court. This will foster untold confusion and mischief in the Texas criminal justice system.
For example, assume that a person who was found not guilty of an intoxication-related offense obtains an expunction order. If she is later placed on probation in an unrelated case, under the Court’s Opinion, the treatment provider could ask her to admit to the intoxication offense as part of a treatment program with impunity. If she did not admit to the expunged offense, her probation could be lawfully revoked by the trial judge. This is just one of a myriad of potential situations where the legal protections historically afforded by an expunction order could be disregarded in a court of law under the Court’s opinion, to the detriment of innocent persons who rightfully rely on those protections.
The Court’s decision also undermines the public policy behind Texas’
expunction law. Expunctions serve an important purpose in society, especially in cases like this where the individual was adjudged “not guilty” of the expunged offense. As one scholar has noted with regard to ex-offenders (which Mr. Donovan is not):
The mere existence of a criminal history can produce assumptions of past dishonesty and future untrustworthiness in the minds of all those aware of that history. Those assumptions often create substantial obstacles to acquiring, among other things, employment and housing.
In addition, some ex-offenders are disqualified at least temporarily from obtaining federal loans or grants for post-secondary education.
Even government programs designed to assist the poor, like food stamps, are unavailable to some ex-offenders, making rehabilitation far more arduous.4
Reintegration into society without employment or housing and without any chances of attaining help is, at best, unlikely.
Persons with arrest records can suffer the same marginalizing effects suffered by those with criminal records. 5 Thus, the policies behind expunging arrest records are substantially the same as those behind expunging conviction records. As an Ohio appellate court wrote in 2007:
[I]n America, people are presumed innocent unless tried and convicted. In this case, the defendant was tried and found not guilty, but continues to suffer punishment in the form of a criminal arrest record. This we cannot allow. 6 Indeed, the legislature in Delaware codified a public policy similar to that which
underlies Texas’ expungement statute:
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