Nondisclosures & Expunctions

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Tuesday, May 1st, 2018
Nondisclosures & Expunctions

Nondisclosures

Deferred Adjudication Nondisclosure

Section 411 of the Government Code was created to allow an “Order for Nondisclosure” in certain cases when a deferred adjudication has been completed.

Misdemeanor cases

Beginning September 1, 2017, for discharges on or after that date that are not under chapter 20, 21, 22, 25, 42, 43, 46, or 71, the Court shall issue an order of nondisclosure at the time the court discharges and enters the dismissal under Article 42A.111 C.C.P., if the court determines that the person satisfies § 411.074 Government Code and there is no affirmative finding that it is not in the best interest of justice that the defendant receives an automatic order of nondisclosure. The person shall present the court with the evidence necessary to establish their eligibility and pay $28 fee to the clerk.

If the discharge and dismissal occurred before September 1, 2017, then person must comply with § 411.0725 of the Government Code, requiring notice to the state and the opportunity for a hearing, to determine if the issuance of the order is in the best interest of justice and whether the petitioner satisfies the requirements of § 411.074, Government Code. Except for the limitations in § 411.074, a person may petition the Court regardless of whether the person has been previously convicted of or placed on deferred adjudication for another offense.

§ 411.074 Government Code requirements:

To be eligible for an order for nondisclosure, generally, the petition must show that during the period of community supervision, the period after the pronouncement of sentence and during any waiting period, the person was not convicted of or placed on deferred adjudication for any offense other than a traffic offense, punishable by fine only.

A person is not entitled to an Order of Nondisclosure if they have been previously convicted or placed on deferred adjudication for any of the following:

1.   Any offense requiring registration as a sex offender;

2.   Murder, Capital Murder, Trafficking of Persons, Continuous Trafficking of Persons, Injury to a child, elderly or disabled, endangering a child, violation of a court order or conditions of bond, or repeat violation of certain court orders, stalking or aggravated kidnaping; or

3.   Any other offense involving family violence. Because it was not clear if this applied to a 1st deferred adjudication for family violence, in 2007 the legislature clarified that a person is ineligible under these categories if the person was placed on the deferred adjudication for, or has been previously convicted of, any of these offenses;

4.   If the Court makes an affirmative finding that the offense for which the request is made involved family violence, as defined by Section 71.004, Family Code.

§ 411.0725 now provides that if the person satisfies, § 411.074, they may apply on the 5th anniversay of the discharge if the offense for which they received deferred adjudication was a felony.

New categories eligible for Nondisclosures

§ 411.0727 allows a person who successfully completes a veteran’s treatment court program to apply, if they meet certain requirements.

§ 411.0728 allows certain victims of trafficking who were placed on community supervision for a variety of offenses to apply if they meet the requirements of § 411.074.

§ 411.073 allows a person to petition for nondisclosure if the person was found guilty and placed on commu­nity supervision for certain misdemeanors. They must show compliance with § 411.074 and no prior convictions or deferred adjudications. The same two-year waiting period applies to offenses under chapter 20, 21, 22, 25, 42, 43, or 46, Penal Code. Ef­fec­tive September 1, 2017, this law was amended to apply to all cases before on or after September 1, 2017.

§ 411.0735 allows a person convicted of a misdemeanor who completes their sentence, including confinement, and not eligible under § 411.073, to apply for nondisclosure if they satisfy § 411.074 and have never been convicted or placed on deferred for an­other offense, the offense was not violent or sexual in nature, and two years have elapse since completion of the sentence. Effective September 1, 2017, this law was amended to apply to all cases before on or after September 1, 2017.

DWI cases

Effective 9/1/2017, certain first-offense DWI cases are eligible for nondisclosure orders. Convictions under § 49.04 Penal Code, other than those punishable under (d), which involves an alcohol concentration of 0.15 or higher, are eligible, if they were placed on community supervision under Chapter 42A, CCP. The petitioner must have completed community supervision and satisfied the requirements of Section 411.074 Government Code—and they must not have been previously convicted of or placed on deferred adjudication community supervision for another offense other than traffic.

After notice to the state, the court shall issue the order if it determines that it is in the best interest of justice. The court may not issue the order if the state presents evidence demonstrating that the commission of the offense resulted in a motor vehicle accident involving another person, including a passenger in a vehicle operated by the person seeking the order. The person may petition the court only after two years from the completion of community supervision if the person successfully complied with a condition that for a period of not less than six months restricted the person’s operation of a motor vehicle to a motor vehicle equipped with an ignition interlock device. If there was no interlock requirement, the person must wait until five years after the completion of the community supervision. See §411.0731, Government Code.

§411.0736 Government Code applies to first-offense DWI cases under § 49.04, Penal Code, that are not shown to have an alcohol concentration of 0.15 or higher under § 49.04(d) Penal Code and that do not qualify under § 411.0731 for an order of nondisclosure. If a person completes their sentence, including a term of confinement, payment of all fines, costs, and restitution, they may petition the court if they meet the requirements of § 411.074—and they have never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense.

After notice to the state, and a determination that it is in the best interest of justice, the court shall issue the order. The court cannot issue the order if the state presents evidence demonstrating that the commission of the offense resulted in a motor vehicle accident involving another person, including a passenger in the vehicle operated by the petitioner. The person may petition the court only after three years from the completion of the sentence if the sentence included at least six months of restriction the person’s operation of a motor vehicle to a vehicle equipped with an interlock device. Otherwise the person must wait five years from the date of completion of the sentence, if there was no interlock requirement.

Procedure

The person shall petition the court that placed the defendant on deferred adjudication by paying to the clerk of the court the fee of $28. When an order is issued, the clerk of the court shall send a copy of the order by certified mai, to the Crime Service of the Department of Public Safety. They shall send a copy to all law enforcement agencies, courts, prosecuting attorneys, or other entities and to the central federal depositories, that there is reason to believe have criminal history record information that is subject of the order.

Information is not subject to a public records request if an order for nondisclosure has been issued. A person who has obtained an order for nondisclosure of the deferred adjudication may deny the occurrence of the arrest and prosecution to which the information relates unless it is being used against the person in a subsequent criminal proceeding.

Civil Penalties

A private entity that collects and compiles criminal history information must comply with the order for nondisclosure. A district court may issue a warning, and after the first warning, the private entity is liable to the state for a civil penalty not to exceed $1,000 for each subsequent violation. Attorney’s fees are recoverable.

Changes to the law apply to deferred adjudication regardless of whether the deferred adjudication is entered before, on, or after the effective date of this act. Additional penalties for private providers were added in the 2007 legislation, including requiring the Department of Public Safety to refuse to disseminate information to a provider who is not in compliance.

Expunctions

What Can Be Expunged?

Chapter 55 of the Code of Criminal Procedure

Article 55.01(a) of the Code of Criminal Procedure states in relation to misdemeanors that “[a] person who has been arrested for commission of a misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1)   the person is tried for the offense for which the person was arrested and is:

(A)  acquitted by the trial court, except as provided by sub­section (c) of this section; or

(B)  convicted and subsequently pardoned; or otherwise granted relief on the basis of actual innocence; or

(2)   the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pend­ing and there was no court-ordered community supervision under chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:

(A)  regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense or charging the person with the commission of any felony arising out of the same transaction for which the person was arrested:

(i)   has not been presented against the person and:

(a) at least 180 days has elapsed from the date of the arrest for a Class C, and there was no felony charge;

(b) at least one year has elapsed from the date of arrest for a Class B or A and there was no felony charge;

(c)  at least three years has elapsed from the date of arrest for a felony; or

(d) the attorney representing the state certifies that the files are not needed for use in any criminal investigation; or

(ii)  if presented, was dismissed or quashed, and the court find it was dismissed or quashed because:

(a) The person completed a veteran’s treatment pro­gram;

(b) The person completed a pretrial intervention program;

(c)  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;

(d) The indictment or information was void; or

(B)  the statute of limitation has expired.

(a-1) a person may not expunge records from an arrest for a warrant issued under Article 42A.751(b) [Motion to revoke community supervision];

(a-2) a person may not expunge records under Subsection (a)(2)(A)(i)(a), (b), or (c) or subsection (a)(2)(B), if the person intentionally or knowingly absconds from the jurisdiction after being released,

The easiest case to expunge all the records of a misdemeanor charge is when it results in a dismissal and the statute of limitations of two years has expired. If a motion to quash is granted and the prosecutor does not refile, then an expunction can be obtained, if the statute has expired. Veterans court and pretrial diversion completion allows for immediate expunction. Acquittal of the charges allows for immediate expunction as long as the state does not prove that the offense for which the person was acquitted arose out of a criminal episode, and the person was convicted of or remains subject to prosecution for at least one other offense. (Article 55.01(c)). But any other termination of the prosecution of a misdemeanor that does not result in a conviction or probation requires that the statute of limitation has expired, or that the state certifies they don’t need the records, before an expunction can be granted.

The expunction under Subsection (a)(2)(A)(i)(a), (b), or (c) only allows for partial expunction of the records, as Article 55.02 Sec. 4 (a-1) provides that law enforcement and prosecuting attorney may retain their records, if the expunction is granted under those sections.

Nondisclosures

Supreme Court Case

On June 1, 2007, the Supreme Court of Texas held in State v. Beam, 127 S.W.3d 435 (Tex.S.Ct. 2007), that a petitioner for expunction of records related to a misdemeanor arrest must wait the two-year statute of limitations.

Chapter 55 of the Code of Criminal Procedure does not apply to deferred adjudication or any type of probation or community supervision.

If a finding of not guilty is entered by the court, the jury, or on appeal, the defendant can apply for an expunction. If the charges are never filed, the arrest records can be expunged after the statute of limitations has expired. Pending cases, in which an information has been filed, can not be expunged. See also State v. Bhat, 127 S.W.3d 435 (Tex.App.—Dallas, 2004).

Deferred Adjudication Is Not Expungeable

Any type of probation, even though completed, is not expungeable. See Texas Dept. of Public Safety v. Failla, supra, and Moore v. Dallas County District Attorney’s Office, 670 S.W.2d 727 (Tex.App. 5 Dist., 1984). A felony completed deferred adjudication is not expungeable. If the trial court grants the expunction, D.P.S. or any agency has six months to file a writ of error to get the judgment set aside. See D.P.S. v. Butler, 941 S.W.2d 318 (Tex.App.—Corpus Christi, 1997).

What if the higher charge is dismissed and the defendant is found guilty of a lower charge? In a case where a felony tampering with records charge was dismissed because the defendant pled guilty to a misdemeanor tampering with records charge, the court held the defendant could not expunge the dismissed case. State v. Knight, 813 S.W.2d 210 (Tex.App.—Houston [14th Dist.] 1991). In Harris County District Attorney’s Office v. D.W.B., 860 S.W.2d 719 (Tex.App.—Houston 1st, 1993), the defendant completed 180 days of deferred adjudication on a misdemeanor case. He subsequently filed a writ of habeas corpus alleging there was no jury waiver on file. The writ was granted, and the judgment set aside. The district attorney then dismissed the case. The trial court’s decision to grant the expunction was affirmed on appeal. Since the writ was granted, it restored the case to its original position prior to trial and therefore there was never any valid probation.

D.P.S. v. Aytonk, 5 S.W.3d 787(Tex.App.—San Antonio, 1999), reversed the trial court’s order granting an expunction of a Class B theft when the defendant had pled nolo contendere to the charge of theft, Class C, in the same court.

The trial court entered a conviction. The appellate court relied upon the Article 55.01 (B) and the charge, if any, has not resulted in a final conviction, and is no longer pending and there was no court ordered community supervision under Article 42.12. The court found that the record shows that Aytonk’s plea resulted in a final conviction, rendering him ineligible for expunction. Rodriquez v. State, 224 S.W.3d 783 (Tex.App.—Eastland, 2007), holds that a conviction for issuance of a bad check precludes expunction of the higher charge of theft by check that was dismissed.

Travis County District Attorney v. M.M., 354 S.W.3d 920 (Tex.App. Austin 2011), held that because the defendant pled to resisting arrest, out of the same arrest for the DWI that was dismissed and assault on a police officer that was 12:45’d into the resisting, petitioner was ineligible for an expunction of either the dismissed DWI or the felony assault. The Court held that Article 55.01 was arrest-based and because the petitioner could not prove that “there was no court-ordered community supervision for any offense.” This section of Article 55.01(a)(2) has been amended to state “the charge has not resulted in a final conviction and there was no court-ordered community supervision under chapter 42 for the offense.” Even after the statute was amended, the Court has still held that a case resolved pursuant to Section 12:45 of the Penal Code is not eligible for expunction. Collin County DA v. Fourrier, 453 S.W.3d 536 (Tex.App.—Dallas 2014).

After the statute was amended, there were a number of cases in which expunctions were denied because the individual was convicted of or placed on deferred adjudication for some offense out of the arrest. The courts make it clear that it is arrest-based, and if any charge results in a conviction or probation for any offense out of the arrest—and therefore that charge is not eligible to be expunged—then no offense is eligible for an expunction. See also Expunction of J.O., 353 S.W.3d 291 (Tex.App. El Paso 2011). Expunction must apply to all records of the arrest for the petitioner to be eligible for the expunction, even under the latest amendments to the statute. Ex Parte S.D., 457 S.W.3d 168 (Tex.App. Amarillo 2015)

Felonies

The purpose of the amendment to Article 55 was to make it easier to obtain expunctions in felony cases. A dismissal prior to indictment, as long as the statute of limitations has run, is clearly expungeable under the statute and will probably not draw an objection.

55.02 Section 4(a) provides that if the state establishes that the petitioner is still subject to conviction, and that there is reasonable cause to believe that the state may proceed against him for the offense, the court may provide in its order the law enforcement agency and the prosecuting attorney responsible for investigating the offense may retain any records and files that are necessary to the investigation. This results in a limited expunction.

Cases in Which There Is an Indictment or Information

Amendment to 55.01 Effective 9-1-01

In September 2001, Article 55.01 was amended to add the provision that if a case was indicted and dismissed or a motion to quash granted and the statute of limitations has expired, then the person can apply for an expunction without having to show the more difficult standard that the indictment was dismissed 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 or because it was void. The statute is so poorly worded that the Supreme Court has now ruled it applies to unindicted cases as well as misdemeanors. This was not the legislative intent. The legislative intent was to make it easier for indicted cases to be expunged.

State v. Bhat, 127 S.W.3d 435 (Tex.App. Dallas 2004), held that Article 55.01 in effect at the time required proof that the statute of limitations had expired when no indictment or information has been presented. Bhat is an assault family violence case in which no information or indictment was ever filed. It is unclear from the records whether it is a felony or a misdemeanor. The defendant’s wife testified that she had filed a nonprosecution agreement, and no charges were pending against the defendant at the time of the expunction. The Dallas Court of Appeals held that the defendant was not entitled to an expunction because the statute of limitation had not expired, under the previous statute, prior to the 2011 amendments adding Section 55.01 (a)(A)(i)(a), (b), and (c).

The following list of cases were all decided before the law changed. Each case was decided under the old version of the statute that required cases where there was an indictment or information filed to meet the extra burden of proving the presentment was made by mistake, false information, or proving a lack of probable cause at the time of the dismissal to believe the person committed the offense or proving that the indictment or information was void.

 

Cases where an indictment or information has been presented in which expunctions have been denied for failure to prove presented by mistake, etc. (still applicable to offenses with no statute of limitations or the statute has not expired):

Dismissed for insufficient evidence: Herron v. State, 821 S.W.2d 329 (Tex.App.—Dallas, 1991); Harris County District Attorney’s Office v. Pennington, 882 S.W.2d 529 (Tex.App.—Houston [1st Dist.], 1994)

A dismissal: Metzger v. Houston Police Dept., 846 S.W.2d 383 (Tex.App.—Houston [14the Dist.], 1992)

A dismissal because of the prosecuting witness’ request: Smith v. Millsap, 702 S.W.2d 741 (Tex.App.—San Antonio, 1985)

Motion to suppress granted: Ex parte Kilberg, 802 S.W.2d 17 (Tex.App.—El Paso, 1990); Harris County District Attorney’s Office v. MGG, 866 S.W.2d 796 (Tex.App.—Houston [14th Dist.], 1993).

A dismissal for insufficient evidence has been held to not qualify for an expunction because it does not meet the statutory requirement of “dismissed 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 or because it was void.” Thus, a dismissal of a felony indictment in and of itself is not expungeable. A case where the indictment was dismissed because the child witness was found incompetent to testify was not granted an expunction and the Court of Appeals affirmed. See Metzger v. Houston Police Department, supra. In addition, the petitioner was not allowed to introduce evidence to support his contention that the case was dismissed due to “mistake, false information, or other similar reason indicating absence of probable case at the time of the dismissal.” The court only reviewed the reason given on the dismissal document and the testimony of the assistant district attorney handling the case. The suppression of evidence that results in a dismissal is not expungeable because the petitioner cannot meet the burden on showing that the dismissal was due to a lack of probable cause or false information or mistake. Specifically, the Courts have held that when evidence is excluded on procedural grounds, it is not the same as showing that the factual underpinnings to the indictment were incorrect. See In the Matter of Wilson, 932 S.W.2d 263 (Tex.App.—El Paso, 1996). This case law will still apply to cases in which there is no statute of limitations, so the only way to qualify for an expunction is to prove the presentment was made because of mistake, or other similar reason.

Wilson, supra, involved the expunction of two different convictions. The first was a heroin conviction that on appeal the Court of Criminal Appeals held the indictment was void and dismissed the case. The Court held that the petitioner met all the statutory elements and the expunction was mandatory under 55.01(a). The second conviction was appealed, and the confession was ruled inadmissible. On remand to the trial court the district attorney dismissed the case for insufficient evidence. The trial court granted the expunction for this case also and the Court of Appeals reversed, holding that the petitioner failed to prove the elements for the mandatory expunction under 55.01(a) and he did not fall within the discretionary expunction of 55.01(b).

Cases in Which an Expunction Has Been Granted Under Article 55.01 (a)(2)(B)

A no bill is expungeable. Note, again, there is a provision that if the statute of limitations has not run, the district attorney and the police can keep their records. Ex parte Aiken, 766 S.W.2d 580 (Tex.App.—Dallas, 1989).

A motion to quash based on a mistake in the presentment of the indictment, Harris County District Attorney’s Office v. Burns, 825 S.W.2d 198 (Tex.App.—Houston [14th Dist.], 1992): The trial court found that the indictment was based on the mistaken belief that the false statements—the basis of the perjury charge—were made during an official proceeding. The Court of Appeals affirmed the expunction. In Harris County District Attorney’s Office v. R.R.R., 928 S.W.2d 260 (Tex.App.—Houston, 1996), a motion to quash was granted because the previous grand jury had no-billed the defendant once he testified in front of the grand jury and presented evidence of the complainant’s mental defects. The D.A. presented the case to another grand jury without letting the defendant appear and present his exculpatory evidence. The motion to quash was granted on this ground, and then the trial court granted an expunction. The appellate court held that the case had terminated even though it was by motion to quash rather than a dismissal. The Court held that “in a case such as this, where actions indicate the defendant was wrongly arrested it would thwart legislative intent and purpose to not expunge.” This amounts to “similar reason” indicating that there was an absence of probable cause. The D.A. appealed and the appellate court affirmed, citing the facts that the first grand jury refused to indict, and after the judge granted the motion to quash the D.A. stated they would not present the case to a third grand jury. This was proof that probable cause was lacking.

Nondisclosures

Entrapment as a matter of law has been held to meet the statutory elements. In Harris County District Attorney’s Office v. Small, 920 S.W.2d 740 (Tex.App.—Houston, 1996), affirmed the trial court’s action of granting the expunction when the petitioner showed that the case was dismissed due to the actions of the police in entrapping him. The court held that there was a lack of probable cause that the defendant voluntarily possessed the cocaine. The burden of proof is much easier if the petitioner chooses to wait until the statute of limitations has expired.

The petitioner is entitled to show that the indictment was presented in error rather than it was dismissed due to insufficient evidence. The court is entitled to hear more evidence than just the assistant district attorney’s explanation for dismissal. Thomas v. State, 916 S.W.2d 540 (Tex.App.—Waco, 1995). In Thomas, the court refused to allow the petitioner to put on evidence. The Court of Appeals reversed, holding that Thomas had a right to show that the indictment was presented and dismissed because of “false allegations” made by the complainant.

Harris County District Attorney’s Office v. Hopson, 880 S.W.2d 1 (Tex.App.—Houston [1st Dist.], 1994), involved a dismissal that occurred because the complaining witness could not identify the defendant at trial. It was an indicted felony. At the expunction hearing the D.A. testified that there was probable cause to believe the defendant committed the crime but admitted that no witnesses testified to the grand jury at the presentment of the case. The D.A. further admitted that there was no medical or scientific evidence indicating the defendant had committed the crime. The district attorney’s office appealed the trial court’s order granting the expunction and argued that the appellate should be bound by the prosecutor’s statement concerning probable cause to believe the defendant committed the crime. The Court of Appeals held that they would look beyond the reason stated in the motion to dismiss. They found that there was nothing in the record about what the grand jury was told. The appellate court went on to say that if the grand jury had been told that the complainant could identify the defendant, then this was not true and the indictment was based on false information. Since there were no witnesses presented to the grand jury and there was no medical or scientific evidence, the indictment must have been based on the complainant’s ability to identify the defendant, which was not true. The expunction order was affirmed.

Ex parte Stiles, 958 S.W.2d 414 (Tex.Ct.App.—Waco, 1997), involved the dismissal of an indicted case after the D.A. discovered exculpatory information. The D.A. testified that after the dismissal, he presented the case with the new evidence to two different grand juries, and both refused to indict the petitioner. The expunction was granted and affirmed on appeal. The court of appeals held that the refusal to indict by the two subsequent grand juries proved a lack of probable cause to believe the defendant committed the crime at the time of the dismissal.

Recommendation by the State

Article 55.01(b) provides a stand-alone provision for expunction if:

(2)   the office of the attorney representing the state recommends the expunction to the court before the person is tried for the offense. This allows for a complete expunction on any type of case, if the office authorized by law to prosecute the offense for which the person was arrested recommends the expunction prior to the trial of the case. None of the other requirements of Article 55.01 must be met. There is no requirement that the statute of limitations expire, there is no requirement for a showing of presentment due to mistake. This applies whether or not an indictment or information was filed.

DPS v. Ibarra, 444 S.W.3d 735 (Tex.App.—Corpus Christi, 2014), review denied, involved a review of exactly what Article 55.01(b)(2) authorizes. In that case the defendant pled guilty to money laundering and completed two years of deferred adjudication. As a part of the plea bargain, the State recommended expunction if the law allows it under Article 55.01(b)(2) CCP. At the expunction hearing, the state again affirmed that they were recommending the expunction, though DPS filed an answer alleging Ibarra was not eligible because of the court-ordered term of community supervision. The appellate court held that the limitation in Article 55.01 that there can be no court-ordered community supervision does not apply to Ibarra’s petition. The community-supervision limitation applies only to subsection (a)(2) of the statute, and even that provides an exception for class C misdemeanors. “By its plain language, subsection (b)(2) provides for the availability of expunction when the prosecuting attorney recommends expunction to the appropriate district court before trial.” 444 S.W.3d at 739. It does not limit expunction solely to untried cases. Though the Supreme Court denied review of this case, DPS has shown a willingness to appeal these cases, so it is recommended that there be a record made of the proceedings and that DPS be noticed of hearing. DPS will most likely be picking a more favorable court of appeals to get a different outcome, to encourage the Supreme Court to make the final determination of the meaning of Article 55.01(b)(2) Code of Criminal Procedure.

What Records Are Expungeable?

All records relating to the arrest. However, corporations are not entitled to have their records of criminal cases expunged. See State v. Autumn Hills Center, Inc., 705 S.W.2d 181 (Tex.App.—Houston [14th Dist.], 1985). Even records kept by the Texas De­partment of Human Resources that relate to the arrest are expungeable. In S.P. v. Dallas County Child Welfare Unit, Inc., 577 S.W.2d 385 (Tex.App.—Eastland, 1979), the district court refused to expunge the welfare department’s records relating to the petitioner’s arrest for injury to a child even though he had been no-billed by the grand jury. On appeal, the Court of Civil Appeals held that Chapter 55.01 of the Code of Criminal Procedure provides for expunction of “all records and files relating to the arrest.” Thus, they ordered the Child Welfare Unit to expunge any reference in their records that were based on the police records and files relating to the arrest. They held that records under Section 34.02 and 34.05 of the Family Code were not eligible to be expunged.

Procedure for Filing

A verified petition must be filed with all the necessary information, including social security number, birth date, and driver’s license number. Such information is set out in Article 55.02(b) of the Code of Criminal Procedure. The exact date of the arrest and date of the alleged offense charged must be very specific. Failure to be correct can result in the Department of Public Safety sending a letter stating they have no records to return—when, in fact, they are keeping the records that were incorrectly identified. The petition and the order must contain the arrest date or else D.P.S. can appeal the order granting the expunction and have the case reversed. See Texas Dept. of Public Safety v. Moore, 51 S.W.3d 355 (Tex.App.—Tyler, 2001).

Example: In Austin, in order to obtain a dismissal in a theft by check case, one must complete a county-sponsored education course. In applying for an expunction, be sure to include the records kept at the counseling center.

Up until September 1, 1999, the petition had to be filed in the county where the arrest occurred. The statute was amended to allow the filing in the county of arrest or the county in which the prosecution occurred. D.P.S. is taking the position that this only applies to arrests after September 1, 1999. Be careful to know where the arrest occurred and where the case was filed. See Autumn Hills, supra.

Order

It must be specific as to the date of the arrest, offense, and agencies. Under the new section dealing with acquittals, the order must include a copy of the judgment of acquittal and the D.P.S. tracking number along with all the identifiers of the defendant listed in Article 55.02. If the defendant wants a copy of the order, be sure to include a sentence stating that the clerk is ordered to provide the defendant and/or his attorney a copy. It is important to obtain a certified copy because it is impossible to obtain a copy later without a court order. The defendant should check each agency in about 30 days to be sure the records have been removed or returned. Many agencies put a low priority on compliance. It is important to check. DPS v. Cooper, 2007 WL 805548 (not reported from the Ft. Worth Court of Appeals), reversed an order for expunction that failed to include the address, key identifiers, and the TRN number as required by 55.02 section 3(b). It was remand to the trial court to enter proper order.

Hearing

After the petition is filed, the hearing cannot be set for a period of 30 days. This time cannot be waived even if the county/district attorney were to agree. The Department of Public Safety can object and halt the expunction. See Texas Dept. of Public Safety v. Riley, 773 S.W.2d 756 (Tex.App.—San Antonio, 1989). In addition, the Department of Public Safety can fail to file an answer, fail to appear at the hearing, and still appeal the judgment. They can file a motion for new trial, appeal, or file a writ of error. Any appeal goes to the Court of Appeals and then to the Supreme Court. It does not go to the Court of Criminal Appeals.

Acquittals

Under the provisions for an expunction in the trial court that granted an acquittal, there is no 30-day waiting period. Article 55.02 sec. (1) states that at the request of the defendant and after notice to the state and a hearing, the trial court—if the trial court is a district court presiding over the case in which the defendant was acquitted—shall enter an order of expunction. This must be done within 30 days. Only a district court can enter an expunction, unless it was a trial of a class C in which a justice or municipal court may enter the order for expunction. This was meant to eliminate the need for a petition.

Nondisclosures

Acquittals can now be filed in municipal or justice court for any class C offense. See Article 55.01Section 2 (a-1). The expunction can be denied, if the petitioner is still subject to prosecution, or the trial court can decide to grant the expunction but limit its applicability allowing the state to maintain their records.

Article 55.02 Section 5(b) was amended to add that except in an expunction following an acquittal, the court may give the petitioner all the records and files subject to the order. Article 55.02(d) provides that the clerk shall destroy all records of a case in which an acquittal occurred and expunction was ordered by the court within 60 days of the order.

The state can apply for an expunction for the defendant, if the acquitted person consents. If the person was not represented by counsel, Article 55.02 says the state shall prepare the order of expunction for the court.

The defendant must provide the necessary information, including a copy of the judgment of acquittal. The state is entitled to notice and a hearing. The defendant is required to prepare the order with all the necessary identifiers and information required by D.P.S. The clerk is then required to send copies of the order by certified mail to each official agency designated. Bargas v. State, 164 S.W.3d 763 (Tex.App.—Corpus Christi, 2005), held that the expunction was available even though Bargas did not file it within 30 days of the acquittal.

Article 55.02 Sec. 4 (a) provides in part:

In the case of a person who is the subject of an expunction order on the basis of an acquittal, the court may provide in the expunction order that the law enforcement agency and the prosecuting attorney retain records and files if:

(1) the records and files are necessary to conduct a sub­sequent investigation and prosecution of a per­son other than the person who is the subject of the expunction order; or

(2) the state establishes that the records and files are necessary for use in:

(A)  another criminal case, including a prosecution, motion to adjudicate or revoke community supervision, parole revocation hearing, mandatory supervision revocation hearing, punishment hearing, or bond hearing; or

(B)  a civil case, including a civil suit or suit for possession of or access to a child.”

Who Can File

Article 55.02(b) says the State “shall prepare the expunction order under this section”; however, it does not make clear which section of the law it is referencing. It appears to be referring to Section 1a(a) that references a finding of actual innocence after conviction, as it states the state must notify the Department of Criminal Justice if the person is in custody.

Article 55.02 (e) say that the director of the Department of Public Safety or the director’s authorized representative may file on behalf of a person described by Subsection(a) or Subsection 2a. These sections don’t correspond with the section of Article 55.02 that would make sense for the department to be involved in. Most likely it is trying to refer to Section 1a (a), of a person who was convicted and pardoned or granted relief based on actual innocence. But this is part of the expunction law that is very muddled and unclear. Subsection 2a is the misuse of identification provisions.

In addition, Article 55.011 of the Code of Criminal Procedure allows a “close relative of a deceased person” to file for an expunction under Section 2 or 2a of Article 55.02. Section 2 references filing an expunction in the county where the petitioner was arrested or where the offense occurred, which doesn’t make sense. It was adopted after Timothy Cole was exonerated after having died in prison. It was probably meant to reference the section where a person has been found “actually innocent.” Section 2a is the misuse of identification section.

Routine Expunction

In the vast majority of cases, there are no objections or answer filed. The case then becomes similar to an uncontested divorce. Evidence should be presented and the order signed. Without the proper showing, any agency can appeal the finding, even if they did not file an objection to the expunction. Texas Dept. of Public Safety v. Wiggins, 688 S.W.2d 227 (Tex.App.—El Paso, 1985). Article 55 requires that each agency must be notified of the hearing. Failure to notify the agency of a reset date or of the original hearing will result in the order being set aside on appeal. D.P.S. v. Riley, 773 S.W.2d 756 (Tex.App.—San Antonio, 1989).

Contested Hearings

If an objection is filed, a full hearing needs to be held. Petitioner has the burden of showing compliance with the statute. If any agency appeals the order, all the records from all the different agencies can be kept. If that one agency wins, all the records are kept. The court reverses the entire case even if other agencies did not object or appeal.

It is important to present evidence at either type of hearing. Since the agency can come in at a later date and contest the ruling, there needs to be evidence that supports the petition. Wiggins, supra.

Cautionary Tales

D.P.S. can appeal an order granting an expunction even if they did not file an answer, appear at the hearing, or file a motion for new trial. They can appeal by way of a writ of error. D.P.S. v. Peck, 954 S.W.2d 108 (Tex.Ct.App. 1997), and D.P.S. v. Butler, 941 S.W.2d 318 (Tex.App.—Corpus Christi, 1997).

Defense attorney’s petition for expunction was a “governmental record” within the meaning of the statute penalizing tampering with a governmental record, and a lawyer could be charged with that crime. State v. Vasilas, 187 S.W.3d 486 (Tex. Crim.App. 2006).

Amendments by the Legislature

Article 55.01 (a) was amended to add that a person is entitled to an expunction whether they were placed under a custodial or noncustodial arrest. The changes made by this act apply to a person seeking expunction of their records regardless of whether the arrest occurred before, on, or after the effective date of this act. The effective date is 9/1/2003.

Nondisclosures

Article 55.01 (a)(2)(B) was amended to state that the person was released and the charge, if any, is no longer pending and there was no court-ordered community supervision for any offense other than a class C misdemeanor. This is effective 9/1/2003. Because this language resulted in so many denials of expunction, the Legislature amended it again in 2011 to say no court-ordered community supervision for the offense, unless the offense is a class C misdemeanor.

Under the most recent version of the statute, T.S.N. applied for an expunction of an acquittal of a felony arrest. The state showed that at the time of her felony arrest, there was a misdemeanor theft warrant outstanding, and she pled to and was sentenced on the theft case. The Court found that the conviction on the theft case should not bar her expunction of her acquittal, as this was not an offense arising out of the same criminal episode, under Article 55.01(c), which would bar the expunction. State v. T.S.N., 523 S.W.3d 171 (Tex.App.—Dallas, 2017). Review was granted on January 19, 2018.

Misuse of Identification

Article 55.01(d) specifically allows the expunction of information contained in records if the information identifying the person was falsely given by another person arrested. Article 55.02 Sec. 2a(a) was amended to make it easier for a person to remove false information about themselves from someone else’s records. The procedure is intended to allow an unrepresented person to apply for the expunction of the records with the attorney representing the state. The applicant must file a verified application stating that they did not give the person arrested consent to falsely identify himself or herself as the applicant. If the state’s attorney verifies that the information was falsely given without permission, then they are to forward a copy of the application to the district court and request the court to enter an order directing expunction based on the entitlement under Article 55.01(d).

55.02(e) now provides that the director of DPS may file a petition on behalf of someone who’s the victim of identity theft. It orders the clerk to destroy all records maintained not earlier than the 60th day after the date the order of expunction is issued or later than the first anniversary of that date unless the records or files were released under Subsection (b).

(d-1) Not later than the 30th day before the date on which the clerk destroys files or other records under Subsection (d), the clerk shall provide notice by mail, electronic mail, or facsimile transmission to the attorney representing the state in the expunction proceeding. If the attorney representing the state in the expunction proceeding objects to the destruction not later than the 20th day after receiving notice under this subsection, the clerk may not destroy the files or other records until the first anniversary of the date of the order of expunction is issued or the first business day after that date.

This act took effect on June 30, 2003. See HB 2725.

Other Statutes That Provide for Expunction

Article 45.051 of the Code of Criminal Procedure, provides for deferred disposition in class C offenses. This section applies to the Justice and Corporation courts. This includes traffic and non-traffic offenses. This statute provides upon completion of the deferred disposition, the complaint is dismissed and may be expunged under Article 55.01 of this code. Even offenses that include the operation of a motor vehicle can be deferred and upon successful completion are subject to expunction under Article 55.01.

An expunction was denied for a police officer charged with a class C misdemeanor on which he was acquitted, on the basis that the petitioner had never been “arrested” and therefore he was not entitled to an expunction. Carson v. State, 65 S.W.3d 774 (Tex.App.—Fort Worth, 2001). The Court of Appeals reversed the trial court’s refusal to grant the expunction, finding that the petitioner’s actual submission to an assertion of authority by appearing at the time and place indicated on the citation to dispute the charges against him was an “arrest.”

Article 45.053 concerning deferred disposition for chemically dependent persons also provides for expunction under Article 55.01.

Alcohol-Related Offenses

In the Alcoholic Beverage Code there is a little-noticed provision for expunctions of even convicted cases. Article 106.12 states that the person convicted of not more than one violation under this code, upon attaining the age of 21 years, may apply to the court in which he was convicted to have the conviction expunged. The application must contain the applicant’s sworn statement that he was not convicted of any violation other than the one he seeks to expunge. If the court finds the application to be true, the court shall order the records, including the sentence, expunged. The applicant is then released from all disabilities resulting from the conviction, and the conviction may not be shown or made known for any purpose. This is particularly important now that Driving with a Detectable Amount of Alcohol by a Minor is included in this code and covered by this provision. It is section 106.041. Section 106.02 covers purchases of alcohol by a minor, 106.04 prohibits consumption by a minor, 106.05 is possession of alcohol by a minor, and 106.07 is misrepresentation of age by a minor. All of these are expungeable even with a conviction.

Other Issues

1. Is there a statute of limitations during which one must apply for an expunction? Because the statute should be liberally construed, there is a good argument against applying any statute of limitation period to the expunction statute. State v. Arellano, 801 S.W.2d 128 (Tex.App.—San Antonio, 1990). Since it is a remedial statute, it should not be bound by any statute of limitations. However, some agencies have argued that the general residual statute of limitations should apply as it would apply to any civil suit. Article 16.051 of the Civil Practices and Remedies Code provides that where there is no expressed limitation period, the action must be brought within four years. One case has held that the statute of limitations does not apply to the expunction statute. “Accordingly, we hold that section 16.051 of the civil practice and remedies code does not act as a bar to the statutory remedy of expunction.” Heine v. Texas Dept. of Public Safety, 92 S.W.3d 642 (Tex.App.—Austin, 2002).

2. Can one expunge the driver’s license records on the breath test refusal or failure? Effective January 1, 1995, the statute specifically states that the court cannot expunge a suspension or a revocation of a driver’s license unless there is an “acquittal.” Acquittal is not the same thing as a dismissal.