Vikram Vij, an assistant district attorney in Galveston County, has sued the Commission for Lawyer Discipline (CLD). He alleges the CLD violated his rights by relying on “illegally gathered and illegally possessed evidence” in a grievance proceeding against him.
Vij alleges the grievance proceeding is based on a partial transcript from a court hearing in a criminal case, but the record in that case has been expunged. Vij also alleges the CLD failed to timely seek a delay of the expunction, and he cannot defend himself without the expunged file.
“Defendant CLD’s actions in failing to intervene or delay the expunction proceeding and Defendant CLD’s illegal actions of using the partial transcript in violation of Texas law and the expunction order have placed Defendant CLD at a distinct advantage in the grievance proceeding against Vij. This has placed Plaintiffs’s reputation and career in jeopardy and furthermore deprived him of the due process he is guaranteed,” Vij alleges in the petition in Vikram Vij v. Commission for Lawyer Discipline.
“How can you defend yourself when all of your defenses, documents, have been destroyed?” asks Ron Rainey, a partner in Tritico Rainey in Houston and an attorney for Vij.
“This is an injustice,” Rainey says.
The CLD declines comment on Vij’s petition, according to a written statement from Kim Bueno, public affairs administrator for Chief Disciplinary Counsel for the Commission for Lawyer Discipline Linda Acevedo. Bueno confirms a “pending evidentiary proceeding” against Vij but declines further comment on the status of the grievance proceeding.
Vij filed his Original Petition and Application for Temporary Restraining Order on Oct. 11. He seeks a declaratory judgment that the CLD’s actions violated his constitutional rights under the Texas Constitution Article 1, §19. He also seeks a declaratory judgment that the CLD violated his due process rights under Texas Civil Practice & Remedies Code §37.004.
Also on Oct. 11, 190th District Judge Patricia Kerrigan signed a temporary restraining order barring the CLD from using or obtaining any records that are subject to expunction in the criminal case and fromusing them in the “grievance proceeding” against Vij. She set a hearing on Vij’s request for a temporary injunction for Oct. 22.
Vij also seeks a permanent injunction, unspecified actual damages and attorney fees.
Vij alleges in the Oct. 11 petition that he was a “number three felony prosecutor” in the Galveston County District Attorney’s Office who was assigned probation revocations. In 2010, he was assigned to handle the revocation case of a defendant known as “J.B.” who was on probation because he had pleaded guilty in 2009 to a charge of unauthorized use of a motor vehicle.
In January 2010, Vij alleges in the petition, J.B. was arrested and charged with aggravated robbery, and in February 2010 the DA’s office filed a motion to revoke his probation. In December 2010, the prosecutor assigned to the aggravated robbery case was transferred to another court, and the case was assigned to Vij. However, Vij later was assigned to act as second chair in the aggravated robbery trial, he alleges. Vij notes the DA’s office has an open-file policy.
During the June 2011 trial on the robbery charge, Vij alleges in the petition, counsel for J.B. alleged that Vij and another prosecutor “violated the court’s discovery order and failed to turn over exculpatory evidence required under Brady v. Maryland.” Then, he alleges 212th District Judge Susan Criss instructed the jury to find J.B. not guilty “based on the lack of evidence of his guilt.” After the not-guilty verdict, Vij alleges that counsel for J.B. told the jury she had filed a motion to have J.B.’s records expunged.
Vij alleges that, during or shortly after the trial, a portion of the trial transcript that includes J.B.’s counsel’s statement that she would seek an expunction was sent to the CLD. Vij alleges the portion of the transcript “was provided not to portray a true picture of the proceedings but only that portion of the transcript that would prejudice the rights of the District Attorneys’ Office and Vij.”
Vij alleges in the petition that the DA’s office was not notified that the information had been sent to the CLD. He alleges the grievance was accepted by the Houston office of the Commission for Lawyer Discipline on Jan. 12, and on Jan. 13, pursuant to Article 55 of the Texas Code of Criminal Procedure, “an order was entered ordering all state entities to destroy any and all records relating to the arrest and prosecution of J.B. for the offense of aggravated robbery.”
Vij alleges, “It was only after the expunction and after the Galveston County District Attorneys’ Office and the Galveston District Clerk destroyed all files and documents relating to the aggravated robbery, that Plaintiff Vij received notice of the alleged disciplinary violations against him.”
He alleges the CLD knew about the pending expunction because the expunction was included in the transcript but failed to timely intervene in the expunction to prevent the destruction of “material evidence” for his disciplinary action.
Rainey says he does not know who filed the grievance against Vij.