in Re State Bar of Texas

Opinion

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

IN RE THE STATE BAR OF TEXAS ════════════════════════════════════════════════════ ON PETITION FOR WRIT OF MANDAMUS ════════════════════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE WILLETT, concurring in the judgment.

The Court concludes in this case “that [an] expungement order does not bar the

Commission [for Lawyer Discipline] from using records from [a] criminal trial in [a subsequent]

grievance proceeding.” Ante at ___. The Court reaches this conclusion because (1) the defendant

in the criminal case “has the right to voluntarily waive his expunction rights” and has done so here,

ante at ___; (2) the trial court’s construction of the expunction statute “contravenes the statute’s

primary purpose” and is “at odds with the acquitted defendant’s interests,” ante at ___; and (3) the

trial court’s order “interferes with the disciplinary process, disrupting the regulatory scheme

promulgated by this Court to govern cases of attorney discipline,” ante at ___. In my view, the

latter two reasons, even if true, provide an inadequate basis to ignore the unambiguous language

of the expunction statute. But I agree with the Court’s first reason and therefore concur in the

judgment.

Article 1.14 of the Texas Code of Criminal Procedure affirms that a defendant in a criminal

prosecution “may waive any rights secured him by law.” TEX. CRIM. PROC. CODE art. 1.14(a).

Article 55.01 provides a defendant a right to expunction that may be waived. See, e.g., In re

Expunction of Jones, 311 S.W.3d 502 (Tex. App.—El Paso 2009, no pet.) (holding that a defendant

knowingly waived his rights to expunction under article 1.14). The defendant in this case consented to the Commission’s motion for access to the expunged records for use in the pending

disciplinary action and has filed a brief in support of the Commission’s petition in this Court.

Article 55.01 grants a right to the defendant, not the prosecutor, and I agree that in this case the

defendant has waived that right.

There is no need in this case for the Court to consider whether the trial court’s order

“contravenes” the expunction statute’s unexpressed purpose or “interferes with the disciplinary

process.” Because the defendant has waived his rights under the expunction statute, I agree that

the trial court abused its discretion by denying the Commission access to the criminal trial record.

_____________________ Jeffrey S. Boyd Justice

Opinion delivered: August 22, 2014