A Disingenuous Practice: State Opposition to an Assault Nondisclosure

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522


There are really only two motivations behind a prosecutor’s plea offer: (1) the individual prosecutor’s belief of what punishment is fitting for a particular individual, and (2) the individual prosecutor’s belief of what he/she can prove in court. As most lawyers recognize, no amount of disapproval for the opposing party can overcome a bad case.

In the context of Family Violence, there is unquestionably a fair amount of disdain flowing from the prosecutor to the defendant. Occasionally, this disdain takes a back seat to uncooperative or unbelievable witness or “victim.” Occasionally, a prosecutor must cut a deal for risk of losing the whole case.

Naturally, there are motivations which drive the decision-making of an individual accused of family violence, too. Aside from avoiding a jail sentence, there is rarely a motivation more important than avoiding a permanent criminal record. Deferred Adjudication is usually a pretty good vehicle for fixing a criminal record while still accepting some form of punishment and thus a good way to solve the prosecutor’s dilemma described above. Successful completion of deferred adjudication will usually lead to a nondisclosure (sealed record). Unfortunately, the law in Texas prevents the sealing of any record which involves family violence.

There is a simple fix for this problem that is well known by both prosecutors and criminal defense lawyers. The State may abandon the family violence allegation in their charging document and transform an Assault Family Violence case into a plain Assault case. After a short waiting period an individual who resolved his/her case in this fashion should be eligible to petition the Court for a nondisclosure. At least that would be the intent of the parties when they enter into this sort of agreement.

The Disingenuous Practice of Objecting to a Nondisclosure Years Later

Family Violence Nondisclosure.JPGUnfortunately, the State sometimes keeps their fingers crossed behind their back. After successfully completing deferred adjudication, observing the applicable waiting period, and demonstrating to the world deservingness, an individual can still find his/her request opposed by the State years after the initial agreement. How is this so?

Despite the apparent punishment-for-nondisclosure tradeoff which was accepted by the State when the case was resolved, the State occasionally argues that a person in the circumstances described above is legally prohibited from obtaining a nondisclosure down the road. Their argument is that, despite the abandonment of the family violence allegation, the case still involved family violence.

What Does the Law Say About a Nondisclosure in This Situation?

Unfortunately, case law is almost non-existent on this topic. A nondisclosure is a civil proceeding and many courts have declared the “amount in controversy” does not reach a level which would create appellate jurisdiction over such issues. Nonetheless, there are some fundamental concepts which the State must wrestle with if they choose to take this backwards approach.

First, the rules of evidence apply. Particularly, the rule against hearsay applies. A prosecutor objecting to a nondisclosure cannot merely offer up the police report to the judge deciding the matter, nor can he or she invite the investigating police officer to talk about his investigation. Arguably, the State should have to sponsor the alleged victim in the criminal case as a witness. This, of course, brings us full circle to the issue of witness uncooperativeness and/or unbelievability which likely got everyone to this point in the first place.

Second, family violence as defined in the criminal context is not the same as family violence in the civil context. Under the Penal Code, Assault Family Violence may be committed “intentionally, knowingly, or recklessly,” whereas Family Violence in the civil context does not include reckless conduct. This means the State will have to prove the person requesting the nondisclosure did something more than acted recklessly.

Finally, the State will have to address the logical question of why they agreed to abandon the family violence allegation in the first place. While this is not a specific legal requirement, judges are logical creatures like the rest of us and frown upon this kind of legal rope-a-dope. Primed with the knowledge that an appellate court is unlikely to accept jurisdiction and reverse their decision, many judges will do right by a person who has shown him or herself worthy.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

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