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.
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!
