Expunctions in Texas

EXPUNCTIONS IN THE STATE OF TEXAS

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Expunctions and nondisclosures have a similar purpose—to clean up a person’s criminal history. Each one is subject to different rules and available in different situations.

Expunctions were created to allow for a clean slate for people who were wrongly arrested or charged with a crime. When an expunction is granted, the person may deny that the arrest ever occurred and all records of the arrest and prosecution are completely destroyed.

I. ENTITLEMENT TO AN EXPUNCTION - Expunctions are the creation of Chapter 55 of the Texas Code of Criminal Procedure. There is no inherent constitutional or due process right to an expunction. Therefore, you must comply with the requirements laid out in Chapter 55.

A. The arrest requirement: The purpose of the expunction statute is to provide a remedy for people who have been wrongly arrested. Therefore, you must be arrested or cited for a Class C misdemeanor and have appeared in court to be eligible for an expunction. (A citation and appearance amounts to an non-custodial arrest.) Only the records of an actual arrest are destroyed with an expunction. Records of a criminal investigation that did not result in an arrest cannot be destroyed.

It is important to note that an expunction must apply to the entire arrest. This means that if you are arrested for multiple charges during one transaction or occurrence, you must be eligible for an expunction on all charges in order to receive an expunction since the expunction applies to the arrest not the outcome of the case. You may still be eligible for a nondisclosure or another remedy as to the cases that were resolved in your favor as a result of this arrest.

In addition to the overall arrest requirement, a specific exception exists for acquittal expunctions. A person who is acquitted of a charge but was convicted or remains subject to prosecution for any offense arising out of the same criminal episode is not entitled to an expunction of the acquitted offense.

B. Categories of expunctions: There are four general categories of expunctions: (1) acquittals and pardons, (2) dismissals and no-bills, (3) discretionary expunctions, and (4) identity theft. Additionally, there are some types of expunctions that may be granted outside of Chapter 55.

1. Acquittals and pardons: The first category of expunctions is for acquittals and pardons. Any person who goes to trial and is found "not guilty" or acquitted is eligible for an immediate expunction in the courtroom in which the acquittal was granted. In addition, anyone who has been pardoned by the governor or the president is eligible for an expunction. You are not eligible for an expunction if you receive a judicial clemency.

Anyone who has been pardoned or otherwise received relief on the basis of actual innocence is entitled to an expunction under this category.

2. Dismissals and no-bills This category is by far the most complicated. It applies to any case other than one where the petitioner was acquitted or pardoned. This can include cases that are indicted and subsequently dismissed, cases that are no-billed by the grand jury, cases refused by the prosecutor, or cases never filed by the police agency.

To be eligible under this section, the petitioner must first meet three criteria. First, he must have been released and the case is not pending. Second, the offense must not have resulted in a final conviction. Third, the petitioner must not have served community supervision under Article 42.12 for any offense out of the arrest except for a Class C misdemeanor.

After those three criteria are met, the petitioner must then show his case fits in one of three categories: (1) the statute of limitations has run, (2) the waiting period has passed, or (3) the case was dismissed for certain reasons.

a. Statute of limitations: A petitioner is eligible for an expunction if prosecution is no longer possible because the limitations period has expired. The limitations period is two (2) years on misdemeanors and four (4) years on most felonies.

b. Waiting period: If no indictment or information has been filed against the petitioner by the time the waiting period expires, then he is entitled to an expunction. The waiting period is six months for Class C misdemeanors, one year for Class A or B misdemeanors, and three years for felonies. However, if the person was charged with both a misdemeanor and a felony out of the same arrest, then the felony waiting period applies to both offenses.

You can get a waiver on the waiting period requirement if the prosecutor certifies that the records and files are not needed for use in any criminal investigation or prosecution, including the investigation or prosecution of another person. This must be an affirmative certification by the prosecutor, not simply a failure to object to the expunction.

c. Reason for dismissal: Finally, a petitioner can have her case expunged if it was dismissed for certain reasons. This is the most complicated of the expunction categories, and it is the one most frequently litigated on appeal. The petitioner must prove that an indictment or information was filed in her case and subsequently dismissed because (1) it was void, (2) the petitioner completed a pretrial intervention program authorized under Section 76.011, Government Code, or (3) the presentment was made for reasons indicating an absence of probable cause. If you complete a pretrial intervention program, you are immediately eligible for an expunction without a waiting period.

(1) Mistake or false information: To require destruction of the State’s files before the statute of limitations has run, the petitioner must prove that the indictment or information against him was only made due to some mistake, false information, or other reason indicating an absence of probable cause to believe he committed the offense. Essentially, the petitioner must show that but for false information, the case against him would never have been presented. The information must not merely cast doubt against the State’s case, but rather must completely remove probable cause to believe the petitioner committed the offense at all.

(2) Cause of dismissal: It is not enough simply to prove that some sort of false information existed. The petitioner must establish that this information was the reason the case was ultimately dismissed. The petitioner must present some affirmative evidence that the case was dismissed for a reason indicating absence of probable cause in order to receive an expunction under this sub-category.

3. Discretionary expunctions: A prosecutor may now recommend an expunction. The trial court has the discretion to grant or not grant these types of expunctions in the interest of justice.

4. Identity theft expunctions: Identity theft expunctions (also called misuse of identity expunctions) are the fourth category of expunctions listed in Chapter 55. These expunctions are intended to address situations where a person is arrested and lies about her true identity.

5. Non-Chapter 55 expunctions: There are a limited number of expunctions that fall outside of Chapter 55 and may be handled in a streamlined fashion. These are mostly restricted to age related crimes where the petitioner may be able to get an expunction after reaching adulthood. These special expunctions apply not only to acquittals and dismissals, but generally apply even if a person was convicted of the offense.

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