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 .
