The Texas Legislature has finally gotten around to closing a semi-truck-sized loophole in the rules relating to the expunging and sealing of criminal records. You will now be able to sue private companies who release or post your criminal record after it has been ordered expunged or sealed.
Here's how private criminal record collection companies have been able to screw over folks in the past:
Let's say you're riding around in the back seat of someone else's car with a bunch of other people. The car gets stopped by a cop, who finds a baggy of marijuana on the floorboard, which no one claims. Everyone goes to jail, including you. Now you've got an arrest for Possession of Marijuana on your record, even though you've never used the stuff yourself. Your lawyer gets the D.A. to dismiss the charge, but the arrest still shows up on a background search. So you shell out some more fees to your attorney, who goes back to court and gets the arrest expunged from your record. All the law enforcement and government agencies who had a record of the arrest go erase your info from their computers and destroy whatever paperwork they had. You just dodged a potential career-ending bullet, right?
But no so fast. A few years later, you apply for your dream job. Your future employer uses a private background check company to pull up your record. And there's your POM arrest from way back when. You don't get the job. Now you're confused. You thought you had that thing erased. You're so upset that you rush over to cousin Joe Bob's house and hop on his laptop and google your own name. Near the top of the list is some company called LookAtTheJerksWhoGotArrested. You click on the link and your mugshot is staring back at you. You contact the company that runs the website. You tell them that your record is expunged, and you demand that they pull down your mugshot. They tell you that they would be happy to edit the information on their site, as long as you pay the necessary "processing fee."
You call your lawyer on the phone at 10:30 p.m. and scream at him, "WT*?!?! I thought you took care of this!!!" Then he breaks the bad news. You are one of those unfortunate people who happened to have their data mined from public criminal records by a private company before they could get an expunction. And while the judge has the power to tell government agencies and the cops to erase your record, there's not much, realistically, that the guy in the black robe can do to a private business.
This all changes as of September 1, 2013. Sections 109.004-109.006 of the Texas Business and Commerce Code will now allow you to sue a private company for damages if it releases or posts information relating to a criminal record that has been ordered expunged or non-disclosed. If you have a record that has been expunged or non-disclosed, and you discover that a private company is still releasing or posting the information, then the new statutes say that you can notify the company and require it to correct or delete its records. If the company fails to do so, you can sue for money damages in state court.
Who knows, maybe someone will create a site called GuessWhoGotTheirButtsSuedOff.com