It's Time to Move a Step Beyond Diversion

There's been a lot of discussion about diversion programs in the local criminal justice races during this campaign. It seems like every candidate for judge or prosecutor has some new diversion program they would like to push. It's time, though, that we quit competing to invent new diversion programs and ask the next question: What the should the courts be doing once someone has completed a diversion program?

So, before we go any further, what is a diversion program? A diversion agreement is where the State and a defendant agree that a defendant's case will be "diverted" from the normal court docket in exchange for the defendant going into a special program -- a diversion program. In the diversion program, the defendant avoids further prosecution and, normally, gets their case dismissed by completing certain requirements (completing alcohol or drug treatment, anger manangement, community service, not reoffending, etc.). Often, a person who completes a diversion program becomes eligible to later have their criminal record related to the case expunged (erased).

Hays County has a number of diversion programs at the misdemeanor level. There is a formal, supervised pretrial intervention program that is run through the adult probation department. There is a less formal pretrial diversion program that is run in-house through the Criminal District Attorney's Office. There's a veteran's treatment court, which is designed for military veterans who may be eligible for services through the Veteran's Administration for things such as PTSD or substance addiction. If you are veteran with mental health issues who, for whatever reason, does not qualify for VA services, or if you aren't a veteran and are suffering from mental illness, there's a mental health court designed to help defendants get access to mental health treatment. As of 2025, we have a newly established drug court, which can serve as a diversion program for some defendants with drug cases. None of these programs have age limitations. I have gotten clients who were in their 30s and 40s into many of these diversion programs. And finally, there is, through the District Attorney's Office, a Driving While Intoxicated diversion program for offenders under the age of 25.

Compared to other counties of our size in Texas, we in Hays County actually do a pretty good job when it comes to offering diversion programs for defendants who deserve a second chance.

The biggest problem now facing defendants, though, is what happens after they have completed a diversion program.

Let's say you are a defendant and go through the District Attorney's in-house pretrial diversion program. You complete all of the requirements and get your case dismissed. Great, right? Well, sort of. Your case is dismissed and you aren't convicted, but your criminal record still exists. Anyone running a criminal background check on you will still be able to find that you were arrested and had a case filed against you. In fact, they will be able to discover this criminal record if they simply Google your name. If you later apply for a job, try to find a place live or enroll in school, the whole world will be able to find your criminal history, diversion program or not.

So how can this be fixed? Because you went through a diversion program, you would be eligible to have your criminal record expunged (erased). However, this does not happen automatically. Under current Texas law, the court, on its own, cannot simply decide to erase your criminal record. Instead, you would need to file a separate civil case in district court asking for an expunction. You would not be eligible for a court-appointed attorney to file for an expunction for you. Rather, you would either have to hire your own lawyer to help your, or try to figure out on your own how to go into court and get an expunction granted. Many defendants who complete diversion programs simply do not have the money to be able to complete the process and get their records expunged.

At least one judge in Hays County, Elaine Brown, who presides over County Court-at-Law No. 3, is trying to fill in the gap. Judge Brown is currently trying to get grant funding to help indigent defendants who complete diversion programs in her court so that they can then have the resources to get their cases expunged.

I want to bring the same approach to County Court-at-Law No. 2. When we decide that a defendant deserves a second chance, and that defendant completes a diversion program, we need to make every effort possible to make sure that the second chance is a meaningful one -- by helping those defendants to get their records erased. Like Judge Brown, I would look for sources of grant funding to make this happen. I would look for assistance from local law schools and legal clinics. And I would advocate at the Hays County Commissioners court for funding to make this a priority.

We can create all the diversion programs and dangle all of the second chances in front of people we like. Now let's help those who deserve second chances finish punching their tickets.