Thursday, January 7, 2010

Expunctions and Non-Disclosures: A Primer

To say that the legal history of Expunctions and Non-Disclosures is complicated is an understatement. These laws have undergone numerous changes throughout their lives and they continue to evolve to this day. One of the most important keys to understanding Expunctions and Non-Disclosures is to understand the underlying issues and basic concepts that are key to these remedies. 


The first thing to keep in mind about expunctions is that, despite their criminal nature, these are civil law remedies. The procedures involving expunctions and non-disclosures should be viewed in that light.

The most practical (and maybe the most important) thing to keep in mind is that a person who meets the requirements and is entitled to an expunction under Tex. Code Crim. Proc. Ann. art. 55.01 will have all records regarding that particular arrest destroyed regardless of equity or discretion on the part of the court or the prosecutor. Article 55.01 eliminates the prosecutorial discretion and judicial equity that so many are familiar with when dealing in criminal law. The expunction statute requires “strict compliance” and the courts have no equitable power to expunge criminal records. Pitts v. State, 113 S.W.3d 393, 2003 Tex. App. LEXIS 3766 (Tex. App. Houston 1st Dist. 2003)Expunctions do not rely on equity or discretion. A petitioner is either entitled to the expunction or not.

Another key understanding expunctions is to remember that expunctions concern arrests – not convictions. Generally, a person who has a legitimate conviction will not be eligible for an expunction (unless the conviction was overturned on appeal or the petitioner has been pardoned). The court in Harris Cty. Dist. Att. v. D.W.B said, “ The statute was not intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge arrest and court records concerning that offense. Merely completing the terms of deferred adjudication and obtaining a dismissal does not entitle a petitioner to expunge criminal records.” Many attorneys not familiar with expunctions think that this process exists as a giant erasure to wipe client’s criminal records clean. The reality is that there are limited circumstances in which a person will be entitled to an expunction of the arrest that is on their record and not a conviction.

Procedurally, the Petition must be filed in a District Court. The Petition for Expunction must track the language of 55.01 to the extent that it applies to each individual case. 55.01 has several subparts and an attorney must make sure that the situation fits one of these scenarios (again, it’s “strict compliance”). Otherwise, the petition will be denied by the court and opposed by the district attorney’s office. 

One of the biggest issues that some attorney’s overlook is the fact that the statute of limitations must have run before you file your petition for expunction. (For both Felonies, and Misdemeanors, State v. Beam, ___S.W.3d___ (Tex. 2007) (No. 06-0974; 6-1-07)). If the statute has not run, then the petition will be denied.  


The statute covering non-disclosures is different from the statute covering expunctions. Although a different process, non-disclosures are related to expunctions in that they deal with a person’s criminal record. A non-disclosure can be thought of in terms of a lesser degree of expunction. A person who meets the requirements and is entitled to a non-disclosure under Tex. Gov’t Code 411.081 will have all records pertaining to that particular arrest prevented from disclosure to the public. The difference of outcomes between an expunction and a non-disclosure is that under an Order for Non-Disclosure, a person’s information will still be available to law enforcement agencies and certain non-law enforcement State agencies.

The main thing to remember about non-disclosures is that they are only used for persons receiving deferred adjudication. That is the first and primary prerequisite before the avenue for a non-disclosure can even be pursued.

Procedurally, Non-Disclosures are filed in the court where the offense was adjudicated (could be municipal, county or district court). Like expunctions, a petition for non-disclosure must track the language of the statute and must specifically state how the petitioner is qualified under that section.


There are numerous other nuances to these statutes, but before diving into the process, it is imperative to keep in mind these general principals when filing petitions for expunctions and non-disclosures. More to come on those nuances…stay tuned!