Criminal defense in Austin Texas.

The Problem with Expunctions

Posted By on December 30, 2008

One of the things I dread after getting a felony case dismissed, is explaining why the case can’t be expunged.  At least not right away.

The statute that governs expunctions in Texas is 55.01 of the Code of Criminal Procedure.  It’s not exactly a model of clarity:

Art. 55.01. RIGHT TO EXPUNCTION.  (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or 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

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed 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;

Like I said, not exactly a model of clarity.  But what it boils down to is this – if your felony case has been dismissed, you have to wait until the statute of limitations has expired, OR

You have to meet one of four conditions:

1.) that the indictment was a “mistake;”

2.) that it was based on false information;

3.) that there is no probable cause; or

4.) that the indictment is void.

The statute of limitations in Texas for felonies ranges from 3 years to forever.  So waiting for the statute of limitations to run might be an option for some, but it won’t be for others.

As for proving that one of the exceptions applies to your case, if you’re able to secure the cooperation of the prosecutor, not a problem.  Otherwise, it might be difficult, or even impossible, to prove that the indictment was a mistake, or that there’s no probable cause.

It’s not a fair result, in my opinion, but that’s how it is.  And it’s actually better than it used to be.

The good news, such as it is, is that for the most part dismissals don’t show up on the kind criminal histories that most employers run.  The Texas DPS Criminal Records site, for example, lists only convictions and deferred adjudications – it doesn’t make any reference to dismissed cases.

The records will still be there, though, at the county courthouse (and on police computers, and several other places), and will be there forever, unless or until a judge orders otherwise.

They also exist on TCIC and NCIC, so any organization that has access to those computer databases will be able to find out about it, as well.

The other bit of good news is that there’s no penalty for trying.  In other words, if you file before the statute has run, the worst that can happen is that you’ll lose, and that you’ll have to wait for the statute to run.

If nobody objects to the petition, you might even win by default.


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