Can your record be Expunged?

Expunction Law

Proceeding in which a first-time offender of a criminal conviction, asks that the records be sealed, so that such records are not available through state/federal repositories. Waiting period expunctions A person may obtain an expunction if no charges have been filed after a waiting period has passed: 180 days for Class C misdemeanors, one year for Class A and B misdemeanors, and three years for felonies.

This is not an absolute drop-dead date, however. The petitioner must still prove that he has been released and the case is no longer pending. If the police (or prosecutors) are in an active investigation, then the petitioner is not entitled to an expunction. Because expunctions are considered civil cases, the burden of proof is on the petitioner to prove the case is not pending.
Waiting period expunctions may be granted only if no indictment or information has ever been filed charging the person with a misdemeanor or with a felony arising out of the same transaction.

The six-month or one-year waiting periods for misdemeanors applies only “if there was no felony charge arising out of the same transaction.”

The most important thing to remember about these new expunctions is that they are not full expunctions.

Any expunctions granted under the waiting period subsection must include language in the order authorizing the police and the prosecutor to retain their records and files.   This way, the public criminal history information will be destroyed, but law enforcement will be able to continue its investigation. Unless the person is again arrested for or charged with an offense arising out of the transaction for which he obtained an expunction, the law enforcement agencies still may not release any information about the expunged case.

Waiting period expunctions will thus act more like a nondisclosure, where public information is sealed but law enforcement is able to continue using the records as necessary. Even if the waiting period has not passed, however, the State may nonetheless agree to an expunction under this subsection. Discretionary expunctions the prosecutor may, at any point until the person is tried, recommend an expunction. The prosecutor’s decision will bind every other government agency. But while most expunctions are mandatory, discretionary expunctions must still be approved by the trial court before they can be granted.

Discretionary expunctions do give the prosecutor important flexibility to authorize an expunction in cases where one is truly warranted but not authorized under any other segment of the law. For example, if immediately after a person was arrested and booked, the victim said, “No, I meant to identify the person next to him,” the arrestee would have that arrest on his record for several years until the waiting period ran. Also, if Robert Alan Smith was mistakenly arrested under a warrant for Robert Adam Smith, he would not otherwise be able to obtain an expunction—again, for at least several years. Actual innocence expunctions Under this section, a person may receive an immediate expunction so long as the pardon or court order “clearly indicates on its face” that it was granted on grounds of actual innocence.

This type of expunction is treated the same way as an acquittal or pardon—the petitioner need provide notice only to the State, rather than all the agencies listed on the petition, and expunction is automatic. Prior felonies As of 2017, prior felony convictions no longer bar an expunction. Misdemeanor dismissals Petitioners whose misdemeanor cases are dismissed have a new ability to obtain an expunction. If an indictment or information is dismissed or quashed, the petitioner may receive an expunction if he can prove that 1) it was void, 2) he completed a pretrial intervention program, or 3) the indictment or information was dismissed for reasons showing an absence of probable cause to believe the person committed the offense. Appellate acquittals The legislature explicitly authorized expunctions where the person was acquitted by an intermediate appellate court and the period for discretionary review has expired. Miscellaneous provisions A person who absconds while free on bail is not entitled to receive an expunction under either the waiting period or statute of limitations subsections. He may, however, still receive an expunction if he is acquitted or pardoned, if the case was dismissed for lack of probable cause, or if the prosecutor recommends expunction. Class C expunctions Class C convictions that were dismissed pursuant to Art. 45.051 of the Code of Criminal Procedure (the provision dealing with deferring disposition [the Class C probation statute]), have a special rule in Art. 45.051(e) specifying that they can be expunged under Art. 55.01 of the Code of Criminal Procedure.

But before proceeding under this statute, note that certain Class C offenses, particularly “status offenses” (those crimes that can be committed only by people of a certain age, such as Minor in Possession of Alcohol, Minor in Possession of Tobacco, Failure to Attend School, etc.), may have other code sections that deal specifically with their expunction, and the process may be easier than seeking an expunction under Art. 55.01 of the CCP.

So check the following statutes before proceeding with expunctions under Chapter 55 of the Code of Criminal Procedure:  Art. 45.0216 of the Code of Criminal Procedure (Class C non-traffic convictions, which can be expunged upon the child’s 17th birthday), §106.12 of the Alcoholic Beverage Code (Minor in Possession of Alcohol convictions, upon the child’s turning 21); Article 45.055 of the Code of Criminal Procedure (Failure to Attend School Convictions upon turning 18), and §161.255 of the Health and Safety Code (Minor in Possession convictions upon turning 18).30

See “Changes in Expunction Law” by Andrea L. Westerfield at https://www.tdcaa.com/journal/changes-in-expunction-law/.

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