Texas Expunction Update

Misdemeanor Offenses in Texas Now Eligible for Expunction on an Individual Basis

By | Expunction

Texas Expunction UpdateIn January of this year, the Supreme Court of Texas heard arguments for Ex parte R.P.G.P. in which it declared that an arrest involving multiple offenses is divisible for expungement purposes under Article 55.01 of the Texas Code of Criminal Procedure. Specifically, it answered a question left open by a previous case, finding that misdemeanor offenses are eligible for expunction on an individual basis.

What is an Expunction of Criminal Records ?

When a criminal record is expunged, that means that the record of is destroyed or sealed (for juvenile records). In an expunction order the court orders the various agencies that maintain records to treat a criminal arrest as though it never happened. People generally have their records expunged so that it does not show up on a routine background check, as an expungement removes any record of the arrest or case from public record.

How Do You Go About Getting an Expungement in Texas?

Under Texas law, there are a number of things that make a record eligible for expunction. If you qualify for expunction, there is a process you must go through, beginning with filing what is called a Petition for Expunction with the district court requesting that it grant an Order for Expunction. While it is possible to prepare this on your own, the somewhat complicated process is best handled by an attorney. The prudent course is to consult a lawyer in order to have the best chance at successfully expunging a record. You only get one shot and if your petition is not granted you don’t get to try again, so it is best to get it right from the start.

After completing the petition, it must be filed with the proper court. You must file the petition for expunction in the district court of the county where the arrest occurred. Following the filing, the court schedules a hearing and notifies the record-keeping agencies that you included in your petition. Once everyone has been notified, the court will hold a hearing and allow those notified the chance to object to the expunction.

If you meet all the requirements, the court will grant the expunction and you will need to give an Order for Expunction to the court for the judge’s signature. Important to know is that the court will probably expect you to have this order ready at the hearing for the judge to sign then and there. Once the order is signed, it has to be submitted to the respondent agencies that you listed in the petition. Those records will then be either deleted or returned to the court clerk for destruction.

A Change in Texas Expunction Law: Arrests for Multiple Offense Can Now be Divided for Expungement?

Prior to a recent court decision, Texans could not expunge an arrest unless ALL alleged offenses qualified for expunction under the law. If any of the alleged offenses in the arrest report were not eligible for expunction, then NONE of the offenses were eligible. A partial expunction was not allowed.

However, State v. T.S.N., was a case which a single arrest involved several unrelated offenses and the court held that partial expunction of the arrest record was required and could be achieved through redaction, leaving the portions of the arrest record regarding an unrelated offense not eligible for expunction. While this case left open the question regarding misdemeanor offenses and their eligibility for expunction on an individual basis, it set the stage for R.P.G.P.’s case.

Thanks to Ex Parte R.P.G.P., if you are arrested for multiple offenses, those offenses are considered divisible—you can expunge one even if the other would not qualify. Ex Parte R.P.G.P. is a great illustration of what exactly this means. In that case, R.P.G.P. was arrested for a DWI and a search of the car revealed marijuana, so he was also charged with possession. The DWI charge was dismissed and R.P.G.P. pled no contest to the possession charge, which was ultimately dismissed after serving nine months of deferred adjudication probation. After both charges were dismissed, R.P.G.P. filed for expunction of the DWI arrest, but the State argued that no part of the arrest record could be expunged because the possession charge was ineligible for expunction. However, the court ultimately held that the DWI portion of the record could be expunged, even though the possession portion would remain on the record.

What Does This Change in the Expunction Law Mean for Texans?

What this means going forward for Texans is that if your arrest record reflects multiple misdemeanor offenses, some of which would be eligible for expunction on their own and some that are not, the ones that are eligible can be expunged, leaving the other portions on the record. This is a shift from the all-or-nothing approach previously adopted by the state. Rather than treating each arrest for various offenses as a collective, we can look at each individual charge and proceed from there. Hopefully, this line of thinking will be expanded to cases involving felony arrests as well, but time will tell.

Fort Worth Expunction

Improvements in Expunction and Non-Disclosure Law in Texas

By | Expunction
Fort Worth ExpunctionWritten 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.