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The Texas Supreme Court has decided that the State Bar can use expunged court records in a disciplinary proceeding against a former prosecutor accused of suppressing exculpatory evidence— records the former Galveston County assistant district attorney had argued couldn’t be used against him because they’d been destroyed.

In the unusual mandamus decision, a majority on the high court balanced the interests of Texas’ expunction statute—which allows wrongfully accused people to eradicate their arrest records—against the bar’s interest to use expunged records to discipline a former prosecutor.

A former criminal defendant who complained of the former prosecutor’s conduct later waived the expunction of his own criminal history for use in the disciplinary proceeding.

In their Aug. 22, 2014, opinion in In Re State Bar of Texas, a unanimous court agreed that a trial court order that prevented the State Bar of Texas’ disciplinary arm—the Commission for Lawyer Discipline—from using expunged records in a disciplinary proceeding should be vacated.

“Given the waiver expressed by the acquitted defendant, the relevance of the expunged records to the disciplinary proceeding, and the commission’s expressed need for those records, the trial court abused its discretion by extending the expungement order to the commission and thereby interfering in the disciplinary proceeding,” wrote Justice John Devine in an opinion joined by Chief Justice Nathan Hecht and Justices Paul Green, Phil Johnson, Eva Guzman, Debra Lehrmann and Jeff Brown.

Justice Jeff Boyd wrote a concurring opinion joined by Justice Don Willett that concluded more simply that the commission could use the expunged records “because the defendant has waived his rights under the expunction statute.”

The background to the dispute, according to the majority opinion in the case, is as follows.

The commission began a disciplinary proceeding against former prosecutor Jon L. Hall in November 2011 after Joshua Bledsoe “was acquitted because the prosecutor suppressed exculpatory evidence.” Hall denied the allegations, and in an answer to the commission’s evidentiary petition complained to the trial court that “he did not have access to records necessary to his defense because all records from the aggravated robbery case had been expunged.”

Bledsoe had previously had his record expunged after he was acquitted of aggravated robbery and later consented to the commission’s wish to use those records in Hall’s disciplinary hearing.

But the trial court eventually ruled that the expunged records could not be used in Hall’s disciplinary proceeding. The commission appealed that ruling in a writ of mandamus to the high court. Meanwhile, a bar grievance panel granted Hall’s motion to dismiss the disciplinary proceeding—a ruling the commission appealed to the Board of Disciplinary Appeals (BODA). BODA has stayed its decision pending the high court’s ruling on the mandamus. [See "High Court Hears Arguments in Grievance Against Prosecutor," Texas Lawyer, Feb. 10, 2014, page 1.]

In the mandamus decision, a majority on the high court concluded that the trial court was wrong to prevent the commission from using the expunged records in Hall’s disciplinary case—records Hall was using “as a shield” against misconduct allegations.

“In barring the commission’s use of any document or other evidence from the underlying criminal case, the court construes the expunction statute at odds with the acquitted defendant’s interests. A process intended to protect acquitted defendants has been used as a shield against charges of prosecutorial misconduct,” Devine wrote.

Greg Hasley, a partner in Houston Hasley Scardano who represents Hall, did not return a call for comment.

Claire Mock, public affairs administrator for the State Bar’s Chief Disciplinary Counsel who represents the commission says it’s pleased with the decision.

“[W]e believe it acknowledges how important it is for our office to be able to pursue allegations of professional misconduct, and reiterates that a district court may not take action that interferes with the disciplinary process,” Mock said in an emailed statement. “We anticipate that the criminal trial court will vacate its order which prohibited the Commission from using the expunged records in its disciplinary matter, allowing the Commission to proceed with its case in due course.”

Taft Foley, director of legal redress programs for the NAACP Houston, who represents Bledsoe, did not return a call for comment. Neither did Barry Willey, an attorney representing the Galveston County D.A.’s Office in the mandamus proceeding.