Two recent Texas appellate cases may have extended additional discretion to Texas agencies when it comes to an arrest which was subject to an expunction order. See Gomez v. Tex. Educ. Agency, Educator Certification & Standards Div., 354 S.W.3d 905, 917-18 (Tex. App.-Austin 2011, pet. denied); and Bustamante v. Bexar County Sheriff's Civil Service Comm'n 27 S.W.3d 50, 53-54 (Tex. App.-San Antonio 2000, pet. denied). In both cases, the appellate court ruled that the agency could use the facts and circumstances surrounding an arrest as evidence against the individual, even though the arrest itself was later expunged.
The ruling in both cases explained that the facts surrounding the arrest were ascertained as a result of first-hand eyewitness testimony and NOT as a result of reliance on records or documents which were expunged. This could have significant ramifications for healthcare practitioners who have had arrests which were later expunged. Following the reasoning, an applicable Examining Board might still consider these arrests in determining whether to issue some sanction against the practitioner, or to deny an initial application for licensure. The only restriction would be that the Board would have to obtain this information without reliance on any police record or document which would have been subject to the expunction order.