Dear
Legislator,
Allow me to introduce myself. My name is _____________________________________I am one of your constituents. The reason for this letter concerns the passage of SB1477 (78)R with regard to Deferred Adjudication. I want to quickly bring your attention to a serious problem with SB1477 (78)R and to urge for your help in correcting this problem by supporting legislation to make it possible to expunge deferred adjudications. Since by Texas law deferred adjudication is not a conviction there is no need to continue state sponsored persecution of individuals who in the best interest of society were granted deferred adjudication. Most of these individuals made mistakes for which they have paid the price for and now many of them are eager to return to society but are prevented from doing so because the record of arrest is not expugnable. Even when the arrest was 20 years ago and they have not gotten in trouble since. This is unacceptable and needs to change.
When a person accepts Deferred Adjudication (DA),
they do so expecting the case to be dismissed, and as a result they will
be able to resume a normal life after successful completion because they are
not considered convicted. The following is evidence of what the original intent
of deferred adjudication is.
Code of Criminal Procedure Article 42.12
sec. 5(c)
Except as provided by Section 12.42(g), Penal Code, a
dismissal and discharge under this section may not be deemed a conviction for
the purposes of disqualifications or disabilities imposed by law for conviction
of an offense.
A person who successfully completes DA is "like a
Pardoned Felon" (Attorney General Opinion JC0396) and is to be "released
from all penalties and disabilities resulting from the offense"
(article 42.12 sec.20). A Pardon restores the "Rights and
Privileges forfeited on account of the offense"(Blacks Law Dictionary
1113(6th ed. 1990). A Pardon absolves and relieves a convicted felon of the
conviction's legal consequences, "direct or collateral" (Attorney
General Opinion JC0396). How clear can this be to a defendant trying
to decide weather to accept DA?
In 1970, Attorney General Crawford Martin authored
Opinion M-640, stating "Article 42.12 defines 'probation' under the
Adult Probation Law as the 'release of a convicted
defendant.' " and further states "We find no language in
Article 42.12 indicating Legislative intent that the probationer not be
considered as convicted". This opinion was in response to
the question, " Can a person truthfully state that he has never been
convicted of a felony on an application for employment?". It is important
to note that this was in 1970, before DA existed. Lawmakers recognized this
problem for people trying to seek employment when they created DA and
specifically added the language mentioned above in Article 42.12 sec. 5(c).
Senator West stated, that there is a difference in "Adult
Probation" vs. "Deferred
Adjudication." A defendant on Adult Probation has been convicted and
had that conviction set aside; however, a defendant on Deferred Adjudication
has never been convicted.
We need to reinforce the law of deferred adjudication to allow people the opportunity to make something useful of themselves and to help contribute to society. Former Attorney General Dan Morales stated in Opinion DM-349 “A person cannot even seek a Pardon since there has never been a conviction as stated in the Attorney, and because of that a person on deferred adjudication cannot have access to the appellate courts.” If we cannot seek redress of grievances with the appelleat courts because we are not convicted then why can these people not have their records expunged since they are not convicted and have successfully had their cases dismissed.
These people are trying to contribute to society
but yet they are prevented from doing so, what message does that send to these
people? Why is the states position to stand in the way of people trying to
succeed in life by continuing to persecute them for something witch they were
not convicted of, for something that was supposed to allow for a second
chance? I as a citizen urge that the
law be changed to prevent the disenfranchisement that is established by
branding someone with a criminal record of due to a deferred adjudication.
Since the arrest is not expugnable the
only the public looks at the individual as still being a risk, even after years
have passed since. For people trying to succeed they find that deferred
adjudication was not the second chance they thought it would be, instead it is
the reason by which their fellow
citizens back away from helping them find a meaningful role in our society,
even if they are the brightest most talented, and the most reformed amongst
us. Many of those on deferred
adjudication sought out to change their lives, instead they found their lives
ruined by being tossed into the criminal justice system.
Attorney General Crawford Martin even stressed in his opinion M-640 to state the distinction between Adult Probation Law and Misdemeanor Probation Law and stated:
"Article 42.13(3) defined misdemeanor 'probation' as
the release of a defendant who has been found guilty."
(Emphasis supplied) Such a probated sentence does not become a final
conviction unless probation is revoked. CF. Secs. 4(a) and 6(b), Art.
42.13. Article 42.13 further provides that when a defendant is discharged
from probation, the finding of guilty may not thereafter 'be considered
for any purpose'. (Emphasis supplied by statute). "
Deferred Adjudication can be taken for what used to be
called the "Misdemeanor Probation Law" in that there is no
conviction, it differs in the fact that defendants still have not even
been found guilty. It is clear Deferred Adjudication, like
SB1477 (78)R, was designed to be an improvement on the old "Misdemeanor
Probation Law" and that
the original intent of the whole system from the beginning, was to offer
reintegration according to the best
interest’s of society to offenders who successful completed their Deferred
Adjudication. In this way their cases would not be considered or be used a for
any purpose thereafter except for what was provided by the
original improvements on the law in Article 42.12 sec. 5(c)(2), which has
provisions for Section 12.42(g), Penal Code, and Chapter 42 of the Human
Resources Code. However, the general public, private
businesses and even state officials incorrectly confuse deferred adjudication
and conviction to be the same, or they manipulate the definition of
"conviction" and the status of Deferred Adjudication through legal
opinions and convoluted jargon to suit their own interests. Again, the
original intent of a successfully completed Deferred Adjudication is to provide
a fresh start, not to attach a social stigma for life such is currently the
case. Deferred adjudication was meant for allowing defendants to be more
successfully rehabilitated; also with a person on deferred adjudication, the
state relieves the judicial system and saves an enormous amount of
time and money in court costs that were used for prosecutions of far more
serious crimes. With deferred adjudication the judge has discretion to
determine if in the "best interest of society" a person should be
given a second chance by offering deferred adjudication.
The necessary passage of SB1477 (78)R is evidence
that technology coupled with confusion in this area have cause the
incorrect application of the word "conviction." Too many times the
incorrect interpretation of the status of a person, who has successfully
completed deferred adjudication, makes it impossible for a person to resume
a normal life after successful completion of deferred adjudication. The
State is not assuming the responsibility for how the general public or private
businesses are considering deferred adjudication for hiring purposes or housing
purposes, nevertheless the 78th Legislature made an effort in providing
some relief from the miscarriage of justice by the passing of SB1477 (78)R. However,
there is a contradiction to SB1477 that was passed it is a bill that we must
urge be repealed in the next session. Along with SB 1477 the
legislature also passed a bill that condemns yet another opportunity to people
who have had a deferred adjudication. The bill lists deferred adjudication
as conviction for purposes of disqualification imposed by law after all the
other laws relating to deferred adjudication promised individuals that it would
not be used in such a way.
SB1577 (78)R Sec. 1(d) (Mortgage broker and Loan officer
license denial)
For the purposes of Subsections
(a)(6) and (c)(5), a
person is considered convicted if a sentence is imposed on the
person, the person receives community supervision, including
deferred adjudication community supervision, or the court defers
final disposition of the person's case.
We need to take this line out of Texas state law in order to preserve the meaning of deferred adjudication.
People who accept DA, do so expecting, that the state will
not confuse them with being a convict, and that they will still be able to
receive an occupational license. However, that dream of being a
contributing member of society is becoming a memory instead of a future goal.
After a defendant successfully completes his or her deferred adjudication, they
receive a dismissal letter from the state of Texas, which specifically
declares, ”you have not been convicted in this state or any other”. SB1577 (78)R and other similar laws
incorrectly apply Extenuating Penalties to a person that successfully
completes DA. Through these laws, the legislature is convicting
a group of people by "Definition", without DUE PROCESS.
These amounts to an EX POST FACTO conviction because the person has already
been dismissed and declared not to have been convicted, yet he is still
declared to be convicted by the definition of certain occupational licenses.
SB1477 (78)R is an attempt by the State to honor the agreement in the Code
of Criminal Procedure Article 42.12 Sec. 5(c) mentioned above.
However, just like Article 42.12 Sec. 5(c) is a false promise by the
State, it seems that SB1477 (78)R is as well.
SB1477 (78)R Sec 4(d)
A criminal justice agency may disclose criminal history
record information
that is the subject of the order to an individual or agency
described by Section 411.083(b)(1), (2), or (3).
Even after a person successfully receives an order of nondisclosure, occupational licensing boards can still turn them down. Applicants with deferred adjudication can have their orders revoked by the legislature at any time. SB1477 (78)R still allows Licensing Agencies to still view their records and SB1577 (78)R allows them to continue to deny people the rights and privileges that were originally intended to be restored after successful completion of DA and are intended to be restored in SB1477 (78)R. A person may still be considered convicted for purposes of disqualification of an occupational license imposed by law through SB1577 (78)R.
Unless we do something to correct this problem now, I believe that these unjust practices will continue to show up in every occupational license. This is particularly alarming considering that today in Texas almost every professional occupation requires a state license. If we are going to be prevented from participating legally as a licensed professional in the state of Texas, what are we then to do?
SB1477
(78)R is setting people and businesses up for serious consequences when it only
partially allows people to deny their history. .
SB1477 (78)R Sec. 5
(b) A person who is the subject of information that is
excepted from the requirements of Section 552.021 under this
section may deny the occurrence of the arrest and prosecution to
which the information relates and the exception of the information
under this section, unless the information is being used against
the person in a subsequent criminal proceeding.
SB1577 (78)R Sec. 3(a) (Mortgage broker or loan officer
license denial)
Section 156.303, Finance Code is amended to read as
follows:
(a) The commissioner may order disciplinary action against
a licensed mortgage broker or a licensed loan officer when the
commissioner, after a hearing, has determined that the person:
(1) obtained a license under this chapter through a
false or fraudulent representation or made a material
misrepresentation in an application for a license under this
chapter;
I am asking you to consider or sponsor a bill that
will repeal SB1577 (78)R and prohibit any other bills like
it. I am also asking that the verbiage of SB1477 be changed to be consistent
with other Texas laws.
Please consider using the verbiage of both the Family Code "Sealing of the Records" and the verbiage of the substitute for HB 181 78(R). Representative Farrar still has the substitute on file. The following is what the Family code says to make it possible for juveniles to seal up their records when they turn 18.
Family Code Chapter Article
58.003 Sec.(g)(5)(j)
(j) A person whose records have been sealed under this
section is not required in any proceeding or in any
application for employment, information, or licensing to state that the person
has been the subject of a proceeding under this title and any statement that
the person has never been found to be a delinquent child shall
never be held against the person in any criminal or civil proceeding.
If we take this potion of the family code and use it for a
new bill relating to deferred adjudication we can change the word "proceeding",
and the phrase "been found to be a delinquent child" can be
replace with "been placed on community supervision in relation to a
deferred adjudication or plead guilty or no-contest to a misdemeanor or felony deferred adjudication".
Also,
please consider using the following in any new legislation:
Substitute for HB 181 (78R) Sec. 1(d)
(d) Not withstanding any other provision of this chapter, if
a person is placed on deferred adjudication community supervision under Section
5, Article 42.12, Code of Criminal Procedure, subsequently receives a discharge
and dismissal under Section 5(c), Article 42.12, and satisfies the requirements
of Subsection (e), a criminal justice agency may not disclose to the public or
a licensing authority criminal history record information
related to the offense giving rise to the deferred adjudication on or after:
HB 181(78R) cont'd Section (h)
In this section, "licensing authority" means a
department, commission, board, office or other agency of the state or a
political subdivision of the state that issues a license, certificate,
registration, permit, or other authorization that a person must obtain to
practice or engage in particular business, occupation, or profession.
Senator West is on record as to the intent of SB1477 (78)R,
only allowing criminal justice agencies and school districts to view the
record. However, SB1477 (78)R fails to exclude "licensing
authority" from the list of groups who will be able to view the
record. Certainly this was not the intent of the bill. If the bill is
general and not specific in this area, and another law like SB1577 (78)R
is specific, then the specific prevails as an exception to
the general provision ( Section 311.026 Government Code).
If the Intent of the SB1477 (78)R is only to allow school districts and
law enforcement to view the record, then the bill should be specific
in these areas as opposed to general. Please consider adding the
following verbiage to the order of nondisclosure:
Notwithstanding any other law except as provided by 12.42 (g) of
the Penal Code, Article 42.12 (5)(c)(2) of the Code of Criminal Procedure
and non criminal justice agencies that govern facilities or programs
licensed to provide supervision for children, the case may not be considered
for any purpose thereafter.
It is alarming that a potential employer or apartment agency
is allowed to make an applicant sign a Power of Attorney before hiring or renting
to the applicant. The problem is that the power of attorney can be used to
access records under SB1477 (78)R Sec 4(d), which allows the person who is the
subject of the order of non-disclosure to access the record. Since it seems logical that if this doesn’t
become a common practice some other loophole will arise compromising the order
of non-disclosure. We urge a clarification as to the rights and privileges that
SB1477(78)R intends to restore, and in what manner the information may be
considered thereafter. It is obvious that the order of non-disclosure should be
“Like a Pardon”, restoring all rights and privileges.
Going back to the original “contract”, Article 42.12 (5)(c) of the Code of Criminal Procedure (stating that deferred adjudication is not a conviction), it seems fair and logical, that when a defendant accepts Deferred Adjudication, they understand the exceptions mentioned above are part of the “contract”, so they must accept them as part of the order of non-disclosure SB1477 (78)R. It also seems fair and logical that since the State of Texas agrees that it is in the “best interest of society” to offer and then enter into this contract, that it must accept the and honor the act of entering into that agreement. Not-withstanding any other law, it seems that the exceptions mentioned above are the only ones mentioned in the original agreement and should be the only ones considered thereafter.
In addition to these adjustments to the Order of Non
Disclosure, which are imperative to be addressed immediately, It is the
position of www.deferredadjudication.org,
www.deferredadjudication.com,
www.deferredadjudication.net,
www.wipetheslateclean.com and
myself as a signatory to this request, that we would like to ask for a state
wide definition of conviction that specifically excludes DA, since the
current definition of Deferred Adjudication used to trick people to waive their
right to a trial by jury specifically excludes a conviction of any nature at
any time.
Thank
you for your support! Mail this letter to your State Representative. Find out who that is at the Texas rep. website at: http://www.house.state.tx.us/members/welcome.htm Or if not sure who that is mail to:
My Texas
Representative, please, once and for all, help me make Texas stand behind its dismissal
and Wipe The Slate Clean.
Representative Jessica Farrar
P.O. Box 30099
Houston, TX 77249
(713) 691-6912
Thank You,
Please offer legislation for further deferred adjudication
reform legislation.
Thanks, (Please Print Name below,
address optional)
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(Sign name)
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