Improvements in Expunctions and Non-Disclosures

Recently, a client called me to ask about getting his record “sealed”. It was an exciting feeling for me.  Getting asked to evaluate an expunction or non-disclosure is probably not that exciting to most attorneys. But, for me it was exciting because I spent several years evaluating expunctions and non-disclosures wearing the hat of a prosecutor. This was the first time I was being asked to evaluate the possibility of an expunction or non-disclosure as a criminal defense attorney.

After my first semester in law school, I began clerking for a district attorney’s office.  As a clerk, my primary duty was to evaluate the incoming petitions for expunctions and non-disclosures.  At that time, I was eager to dissect any statute put in front of me.  After reading, very slowly and carefully, Art. 55.01 of the Texas Code of Criminal Procedure, I thought I had a handle on it.  Then, a situation with incoming petitions began to pop up.  Petitions were being filed to expunge misdemeanors before the statute of limitations had run.  According to my reading of the statute, this was not allowed.  Without going into more detail (and there is a lot to go into on this issue), I ended up helping an attorney in our civil division write a brief that eventually ended up in the Texas Supreme Court.  The opinion in The State of Texas v. Judy Beam, was handed down by Chief Justice Wallace B. Jefferson supporting my reading of the statute that the statute of limitations had to run on a misdemeanor before an expunction could be ordered. State v. Beam, 226 S.W.3d 392 (Tex. 2007).

The Beam case put a nail in the coffin for misdemeanor expunctions to be granted without having to wait at least two years.  The interesting issue in Beam was that it was clear that the legislative intent was for the statute of limitations not to apply.  The State knew that, but we felt that if they intended that to be the case they should have drafted it to reflect that.  If the wording of the statute is wrong and you have to look to the legislative intent behind every statute, what’s the point of codifying in the first place?  I’m glad we pushed Beam to the Supreme Court and got that ruling.  Even more so on the other side now.  What the Beam decision did was to force the legislature to go back to the drawing board and draft Art. 55.01 to reflect what their intent was.

The 82^nd Legislature did just that.  SB 462 and HB 351 amended Art. 55.01 to expand eligibility for expunctions.  In addition to cutting the waiting period for expunctions, the legislature added a provision that states that regardless of the waiting periods, a person is entitled to an expunction if “ the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person.”

The new changes made by the 82^nd Legislature make Art. 55.01 a better statute that now more accurately reflects not only the legislature’s intent on expunctions, but also the most just way to handle taking an offense off of someone’s record (that shouldn’t have been there in the first place).

The new changes to Art. 55.01 are a great improvement, but we still must do our best to educate clients about what expunctions are not. When the potential client called me he seemed to be under the impression that there is some magic eraser out there that can get rid of his criminal record. The bottom line is, expunctions never were meant to erase a conviction (unless it’s overturned on appeal or there is a pardon granted).

The potential client’s case was not qualified for either an expunction or a non-disclosure, but in light of the few years I’ve dealt with expunctions and non-disclosures, it was still exciting for me to talk to an actual person and hear their viewpoint on the expunction process.

If you have any questions or want to discuss the new changes to the expunction statute, feel free to call me at The Law Office of Luke A. Williams.

See our past posts on Expunctions and Non-disclosures:

• Expunctions and Non-Disclosure: A Primer
• Questions Regarding Expunctions
• Expunctions: The Magic Eraser?

Expunctions: The Magic Eraser?

This just in from one of the LJ4Y co-conspirators:

There is a misconception among clients (and the general public for that matter) that somewhere within the confines of an attorney’s office exists a magic eraser that can clear criminal records. Unfortunately, this is far from true.  In an earlier post (HERE), I wrote about the general process and purpose of Article 55.01 of the Texas Code of Criminal Procedure – Expunction of Criminal Records.  I’d like to break down – as much as possible – the specific situations that will entitle a person to an expunction of their criminal records.

The first thing you must convey to a client is that the magic eraser for their criminal record is only available in very limited circumstances.  Actually, there are only six circumstances that allows for a person to be entitled to an expunction. The first three are easy:

(1)    A person is arrested and acquitted by the trial court

(2)    A person is arrested, convicted, and subsequently pardoned

(3)    A person is arrested, convicted, and then acquitted by the Court of Criminal Appeals

The other two are what I call “screwy” (you won’t find that in Black’s Law Dictionary). We find the two screwy circumstances under Article 55.01 (a) (2) of the Code of Criminal Procedure.  Article 55.01 (a) (2) is the one section of the expunction statute that is most commonly misunderstood and misapplied.  It’s also one of the most poorly worded statutes in the Texas Code of Criminal Procedure (Coincidence? I don’t think so).  This section states that a person is entitled to an expunction if:

(2) each of the following conditions exist:

     (A)   An indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

           (i) The limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

           (ii)  The court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense because it was void

Whew!!! Now, do you see why I call it screwy?  To break it down, this section basically states the last two circumstances that allow for a person to be entitled to an expunction:

(4)    After being arrested, the person was never charged or indicted

(5)    After being arrested, the person was charged or indicted and the information or indictment was dismissed because of mistake, false information, or other similar reason indicating lack of probable cause, or the person completed a pretrial intervention program under 76.011 of the Government Code.

This section also places some qualifiers on these last two circumstances. 55.01 (2) (B) states that a person is entitled under our last two circumstances if the charge has not resulted in a final conviction (the person may have plead to another offense arising out of the same charge), the charge is no longer be pending, and the person wasn’t put on deferred adjudication (unless it was a class C offense, in which case they would be entitled to the expunction).  55.01 (C) states that a person is entitled under our last two circumstances if the person has not been convicted of a felony in the five years preceding the date of arrest.

Without going into too much (more) detail, there is one caveat I have to throw in. Article 55.01 (2) (A) (i) says that the statute of limitations must have expired before you file your expunction. The Texas Supreme Court ruled in The State of Texas v. Judy Beam, that this section applies to both misdemeanors and felonies.

We've covered five situations a person will be entitled to an expunction under Article 55.01. We find one final instance where a person may be entitled to an expunction:

(6)    Section 106.12 of the Texas Alcoholic Beverage Code allows for the expunction of one TABC offense once a person turns 21 as long as they only committed one offense under the TABC code when they were a minor.

It’s important to make sure that when clients come into an attorney’s office wanting to “clear their record” that they know just how limited the circumstances are for that to happen.  The magic erasure exists but it may not be quite as big as some people perceive.

Look for more expunction fun in the future….next up, my comments on where the language of this statute went wrong! 

Question Regarding Expunctions

This week we received the following question.


Question:  L & J for Y'all, In my case the DA agrees that no crime was committed. He says if I can prove my entitlement to expunction pursuant to Article 55.01. RIGHT TO EXPUNCTION (a)(2)(A)(ii) then he will agree to it. So I will not have to wait for the statute of limitations to run. But I do not know why I have to prove it since he admits I am entitled. Regardless here is my question. How do I or an attorney get at the information to prove this? Is discovery allowed in an expunction proceeding? Are there alternatives such as Texas Rules of Civil Procedure Rule 202?


Answer: Article 55.01 (a) (2) (A) (ii) states that you are entitled to an expunction if the court finds that the information or indictment against you was dismissed or quashed because the presentment had been made because of mistake, false information or other similar reason indicating absence of probable cause. Basically, that just means that you were charged with the crime but shouldn't have been because it was a mistake or based on false information. 

When you were told that you have to "prove" your entitlement to the expunction, that probably means that the prosecutor wants you to prove to him that the charge was brought against you based on a mistake or false information. This can be done in writing by what you allege in your pleading when you file your Petition to Expunge Records.  You will not need discovery and it is unlikely that any state agency will admit in a discoverable writing that it erred when it arrested or charged you.

I think all the prosecutor is looking for is language in your pleading that tracks the language of the statute. In civil court (which is where these Petitions are filed), statements made in pleadings are taken as true unless they are denied by the opponent in some way. Once you simply say, "I am entitled because the information was dismissed because of a ________ mistake" (or something to that effect-depending on the facts of your case), then the prosecutor will have to take steps to file a denial and contest the matter.

Of course, I think you should hire an attorney if you foresee any other issues arising (and I am not familiar with all of the facts of your case). If you think this issue is simple and that you and the prosecutor are on the same page on this deal then it may be enough to just file your petition with the proper language . 

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. 

Expunctions 

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.  

Non-Disclosures

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.

Conclusion

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!