Written by Luke A. Williams, Criminal Defense Attorney with Barnett Howard & Williams PLLC, Fort Worth, Texas.
Recently, a client called me to ask about getting his record “sealed”. It was an exciting feeling for me. Getting asked to evaluate an expunction or non-disclosure is probably not that exciting to most attorneys. But, for me it was exciting because I spent several years evaluating expunctions and non-disclosures wearing the hat of a prosecutor. This was the first time I was being asked to evaluate the possibility of an expunction or non-disclosure as a criminal defense attorney.
After my first semester in law school, I began clerking for a district attorney’s office. As a clerk, my primary duty was to evaluate the incoming petitions for expunctions and non-disclosures. At that time, I was eager to dissect any statute put in front of me. After reading, very slowly and carefully, Art. 55.01 of the Texas Code of Criminal Procedure, I thought I had a handle on it. Then, a situation with incoming petitions began to pop up. Petitions were being filed to expunge misdemeanors before the statute of limitations had run. According to my reading of the statute, this was not allowed. Without going into more detail (and there is a lot to go into on this issue), I ended up helping an attorney in our civil division write a brief that eventually ended up in the Texas Supreme Court. The opinion in The State of Texas v. Judy Beam, was handed down by Chief Justice Wallace B. Jefferson supporting my reading of the statute that the statute of limitations had to run on a misdemeanor before an expunction could be ordered. State v. Beam, 226 S.W.3d 392 (Tex. 2007).
The Beam case put a nail in the coffin for misdemeanor expunctions to be granted without having to wait at least two years. The interesting issue in Beam was that it was clear that the legislative intent was for the statute of limitations not to apply. The State knew that, but we felt that if they intended that to be the case they should have drafted it to reflect that. If the wording of the statute is wrong and you have to look to the legislative intent behind every statute, what’s the point of codifying in the first place? I’m glad we pushed Beam to the Supreme Court and got that ruling. Even more so on the other side now. What the Beam decision did was to force the legislature to go back to the drawing board and draft Art. 55.01 to reflect what their intent was.
The 82nd Legislature did just that. SB 462 and HB 351 amended Art. 55.01 to expand eligibility for expunctions. In addition to cutting the waiting period for expunctions, the legislature added a provision that states that regardless of the waiting periods, a person is entitled to an expunction if “ the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person.”
The new changes made by the 82nd Legislature make Art. 55.01 a better statute that now more accurately reflects not only the legislature’s intent on expunctions, but also the most just way to handle taking an offense off of someone’s record (that shouldn’t have been there in the first place).
The new changes to Art. 55.01 are a great improvement, but we still must do our best to educate clients about what expunctions are not. When the potential client called me he seemed to be under the impression that there is some magic eraser out there that can get rid of his criminal record. The bottom line is, expunctions never were meant to erase a conviction (unless it’s overturned on appeal or there is a pardon granted).
The potential client’s case was not qualified for either an expunction or a non-disclosure, but in light of the few years I’ve dealt with expunctions and non-disclosures, it was still exciting for me to talk to an actual person and hear their viewpoint on the expunction process.