New Changes to Nondisclosures in Texas Expunctions Law What You Need to KnowWhat is Shock Probation?EndorsementsFormer Fort Bend County District AttorneyHelping Texas FamiliesLynn Messer, Parole Law

New Changes to Nondisclosures in Texas

Source: Texas District and County Attorney’s Association: By Andrea L. Westerfeld

New Texas Non-disclosure Laws

 

2015

By Andrea L. Westerfeld

Assistant Criminal­ ­District Attorney in Collin County

 

An attempt to summarize the changes made to Government Code §411.081(d) and help prosecutors through potential new pitfalls.

 

It was confusing, but it was ours. The nondisclosure statute of Government Code §411.081(d) was certainly not a model of clarity, but after more than a decade of using it, we had generally figured out what was required and how to respond to petitions for nondisclosure. Then in the 84th Regular Session, the Texas Legislature proposed a number of new bills to drastically change both expunctions and nondisclosures. Many of those bills were (thankfully) vetoed, but what passed was sufficient to change the nondisclosure landscape significantly. This article will attempt to summarize the changes made to the law and alert prosecutors to potential new pitfalls.

When does (did) the law come into effect?

The most important thing to know about any new law is when it becomes effective. The nondisclosure changes have an effective date of September 1, 2015, but don’t panic yet. The new statute applies only to offenses occurring on or after September 1, 2015, not petitions filed after that date For any offenses occurring before September 2015, regardless of when the petition is filed, the old law will continue to apply. This gives us all a little breathing room to figure out the new statute before it is applicable.

The new nondisclosure statute has been spun out of §411.081(d) and now has spread over several sections of the Government Code, §411.071–077. Note that §411.081(d) was not repealed and continues to exist for the purposes of offenses occurring before September 1, 2015.

Base ­requirements for all ­nondisclosures

Although there are a number of new categories of nondisclosures, there are two base requirements that apply to every nondisclosure under the new law. If the petitioner cannot meet these requirements, then she is not eligible for a nondisclosure.

First, the petitioner cannot have been convicted or placed on deferred adjudication for any offense (other than a fine-only traffic violation) at any time after the sentence was pronounced through any applicable waiting period Thus, if Nancy gets deferred adjudication on a case, but two months later she is convicted on another offense, she will not be able to get an order of nondisclosure on the deferred. The relevant consideration is when the person was actually convicted or placed on deferred, not the offense date. SO, if Nancy is charged with one offense in January, gets deferred on a second offense in May, and is not sentenced for the first offense until August, that offense will block her from receiving a nondisclosure on the deferred. If she pleaded to the January offense in April, however, that would not block a nondisclosure on the deferred because the plea occurred before she was placed on deferred.

The second base requirement is that the petitioner has never been convicted or placed on deferred for any offense out of a certain list This list includes any offense requiring registration as a sex offender, any case involving family violence, and any offenses under Penal Code §§19.02 (murder), 19.03 (capital murder), 20.04 (aggravated kidnapping), 20A.02 (trafficking of persons), 20A.03 (continuous trafficking of persons), 22.04 (injury to a child, elderly, or disabled), 22.041 (abandoning or endangering a child), 25.07 (violations of bond in family violence cases), 25.072 (repeated violations of bond in family violence cases), and 42.072 (stalking). This applies both to the offense which the person is seeking to have nondisclosed and any other offense in his criminal history. SO, if Joe received deferred adjudication on a family violence case, he is not eligible to have that case nondisclosed. But he would also be ineligible to have any future case nondisclosed because of the family violence case in his criminal history. Note that the statute applies to any case “involving family violence,” not merely to cases where there was an affirmative finding of family violence. Thus, if Joe received deferred adjudication on an assault without an affirmative finding of family violence, a future court could still look at the case to determine if it involved family violence and thus renders him ineligible for nondisclosure.

Five (yes, five) categories of nondisclosure
Once the petitioner has met the two base requirements, he then must fit into one of the five new categories of nondisclosure. If the petitioner does not meet the requirements of any of the five categories, then he is not entitled to an order of nondisclosure. And yes, this means we have to do five times the amount of work as before, checking in each category to see if the petitioner is entitled.

1. Deferred for Certain ­Misdemeanors (“Automatic Nondisclosures”): §411.072
The biggest point of discussion from the nondisclosure changes is definitely the so-called automatic nondisclosures. These changes were intended as a way to streamline the process for first-time, low-level offenders. By “low level,” the statute excludes a number of misdemeanors from consideration including all misdemeanors under Penal Code Chapters 20 (kidnapping and unlawful restraint), 21 (indecent exposure and unlawful photography), 22 (assault, deadly conduct, terroristic threat), 25 (bigamy, enticing a child, criminal nonsupport, violation of protective order), 42 (disorderly conduct, harassment, animal cruelty), 43 (prostitution, sexting), 46 (unlawful carrying of a weapon, prohibited weapons), and 71 (engaging in organized criminal activity). If the petitioner was put on deferred for any misdemeanor under those chapters, he is not eligible for an automatic nondisclosure.

The next significant factor in automatic nondisclosures is that they are only for first offenders. Ordinary nondisclosures restrict only people previously convicted of certain offenses from obtaining an order, but automatic nondisclosures require that the person has never been convicted of or placed on deferred for any offense other than a fine-only traffic violation So if the petitioner has any prior convictions or deferred, he is not eligible for an automatic nondisclosure.

Once the petitioner meets those two requirements, then the process is simple. He must successfully complete deferred and obtain an order of discharge and dismissal It also must be at least 180 days since he was placed on deferred. That means that a person whose probation lasted longer than six months can get a nondisclosure immediately upon completing probation. But if the probation lasted less than six months, he has to wait until six months have expired until he can get a nondisclosure.

One requirement for regular nondisclosures that does not have to be met in automatic nondisclosures is that the petitioner shows it is in the best interests of justice to issue the order. There is a similar provision, but it requires action earlier. Under the new Article 42.12, §5(k), when a trial court places a person on deferred, it must make an affirmative finding if it concludes that it would not be in the best interests of justice for the person to receive an automatic nondisclosure Thus, the State can make an argument on best interests of justice only at the time the person is placed on deferred. If that affirmative finding is made, then the person is ineligible to receive an automatic nondisclosure.

Of course, there has to be one additional wrinkle to spice things up. In the same legislative session it passed §5(k), the Legislature wholly repealed Article 42.12 and replaced it with the new Chapter 42A of the Code of Criminal Procedure as of January 1, 2017.9 The §5(k) language did not make it into Chapter 42A. Exactly what this means is unclear. The bill creating Chapter 42A specified that it was meant as a recodification only and no substantive changes were intended 10 Thus, §5(k) may be one of several newly amended provisions of Article 42.12 that survive the repeal of that article and will likely be rolled into new Chapter 42A in the next legislative session.
Finally, a big question on “automatic” nondisclosure orders is how they will be issued. Unfortunately, the law is not clear. The statute simply says that the court “shall issue” the order after determining whether the person meets the requirements of the statute 11 It also provides that a defendant is not required to file a petition. But the defendant is required to pay a fee and “present” to the court any evidence necessary to establish that she is eligible 12 Evidence of eligibility would include the order placing her on deferred and the order of discharge and dismissal, as well as a criminal history search to verify she does not have any disqualifying prior convictions or deferreds. Exactly how or when this information is meant to be presented is left unclear, but the best analogy would be acquittal expunctions under the Code of Criminal Procedure 13 Like automatic nondisclosures, the defendant is not required to pay ordinary criminal filing fees and must only “request” relief rather than file a petition for it, but the “request for acquittal expunction” is generally identical to an expunction petition so the court has all the information necessary to grant it. Thus, the best practice would be to file a “Request for §411.072 Nondisclosure” with the court; it should contain the information about the offense listed above so that the court can enter an order. Different counties may come up with their own preferred approaches to these cases.

2. Standard Deferred ­Nondisclosures: §411.0725

If a person received deferred adjudication but does not qualify for an automatic nondisclosure, then he would be considered for nondisclosure under §411.0725.14 This would include anyone who received deferred for a felony or a misdemeanor in the prohibited list of §411.072, a person who received a §5(k) affirmative finding, or someone with a prior conviction or deferred. These operate exactly like a traditional nondisclosure. The person must show that he was placed on deferred, that he received a discharge and dismissal, that a waiting period has passed, and that issuance of the order is in the best interests of justice 15

Waiting periods for §411.0725 nondisclosures are unchanged from earlier versions 16 All felonies must wait five years. Misdemeanors under Chapters 20, 21, 22, 25, 42, 43, and 46—in other words, the misdemeanors barred from receiving an automatic nondisclosure—have a two-year waiting period. All other misdemeanors can be granted immediately. The waiting period begins to run only when the order of discharge and dismissal is signed, not when the supervision expires, so prosecutors must pay attention to when that order was actually signed.

These nondisclosures—and all nondisclosures other than automatic ones—require the petitioner to show that issuance of the order is in the best interests of justice 17 This is the time to introduce any issues that do not technically disqualify someone from receiving a nondisclosure but that are still issues a judge might believe should not be sealed from public record. Examples might include several prior similar offenses—like if Ted has gotten deferred on numerous prior theft cases and now wants the latest one sealed, the court might believe his potential employers deserve to know he has a history of stealing. Or if the facts of a case were particularly heinous—perhaps a child sexual assault where the case was pleaded down to assault solely to prevent the young victim from testifying—the judge may conclude it is not in the best interests of justice to seal that record. These are considerations that will vary widely from case to case and judge to judge, so it is something we have to consider on an individual basis.

3. Straight Probation for ­Certain Misdemeanors: §411.073

Another huge change made to nondisclosure laws is allowing people who were convicted to still have their cases sealed, as opposed to limiting this option solely to deferred adjudication. There are two separate sections that allow this—§411.073 for community supervision cases and §411.0735 for jail time cases.

Under §411.073, a person may be eligible for a nondisclosure if she receives community supervision for certain misdemeanors 18 Mostly intoxication-related offenses are precluded, including any misdemeanors under Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors) or Penal Code §§49.04 (driving while intoxicated), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), or 49.065 (operating an amusement park ride while intoxicated). Additionally, any conviction under Penal Code Chapter 71 (engaging in organized criminal activity) may not be nondisclosed.

For any OFFENSES, not on the prohibited list, the petitioner must successfully complete community supervision and receive a discharge and dismissal 19 This section applies to anyone who served community supervision, even if he also served jail time such as through shock probation or as a term and condition of probation 20 The waiting period for these cases is, again, two years for offenses under Penal Code Chapters 20, 21, 22, 25, 42, 43, or 46, or immediately for all other misdemeanors. The petitioner must still prove that issuance of the order is in the best interests of justice. But the petitioner must also show—as in automatic nondisclosures—that she was never convicted of or received deferred adjudication for any offense other than a fine-only traffic offense 21 These nondisclosures are intended for first-time offenders only.

4. Misdemeanor Jail Time: §411.0735

Misdemeanor convictions that resulted in jail time are covered in their own section, but they operate much the same as straight probation cases. The person must have been convicted of a misdemeanor, but not for any of the prohibited offenses—generally intoxication offenses and engaging in organized criminal activity 22 The waiting period for these cases is two years after the person is released from confinement 23 Like straight probation cases, the petitioner must be a first-time offender. Any prior convictions or deferred, other than for a fine-only traffic offense, will disqualify him from receiving a nondisclosure Finally, the petitioner must show that issuance of the order is in the best interests of justice.

5. Human Trafficking Victims: §411.0728

This section will not likely be used very often because the requirements are very stringent, but for the situations where it occurs, here is your guide. This section applies only to people convicted of prostitution 25 and sentenced to straight probation 26 They must then successfully complete probation and have the conviction set aside under the so-called “judicial clemency” act, Article 42.12, §20(a)27 of the Code of Criminal Procedure 28 If so, they may file a petition of nondisclosure and must convince the judge that they committed the offense solely as victims of human trafficking and that issuance of the order is in the best interests of justice.

Other considerations

Most of the other nondisclosure rules have stayed essentially the same in the recodification. Other than in automatic nondisclosures, a person must file a civil petition to be considered for a nondisclosure 30 The trial court must then provide notice to the State. But unlike the old statute, a hearing is not required. The petitioner must only receive the opportunity for a hearing 31 The State must request a hearing before the 45th day after it received notice of the petition 32 Otherwise, the court may grant the order without a hearing if it can determine from the petition alone that the person meets all the requirements.

The new statute still does not give a right of appeal in nondisclosure cases. Generally, such cases cannot be appealed because they do not reach the required amount of controversy to vest jurisdiction in civil cases. But if a judge grants a nondisclosure to a person who is statutorily not entitled to it, the State may can seek a writ of mandamus to overturn the order. This would not apply to the discretionary sections, such as whether issuance was in the best interests of justice, but if a petitioner has a disqualifying prior conviction or the waiting period has not run, mandamus may be an option to obtain relief.

As ever, information about an offense subject to an order of nondisclosure may not be disclosed to anyone except 1) for criminal justice purposes, 2) to certain regulatory agencies, or 3) to the petitioner himself. The petitioner (or his attorney) is the only person who can obtain the records under that exception. He cannot generally waive a previously granted order of nondisclosure so that the agencies can disclose records to a third party 34 The list of regulatory agencies remains generally unchanged, but banks and similar financial institutions are now included, so long as it is regarding an application for employment 35 Similarly, employers of “critical infrastructure” are exempted regarding information about an employee or applicant who would be responsible for handling, manufacturing, or transporting certain hazardous materials 36 Finally, while disclosure for criminal justice purposes has always been allowed, the new statute makes clear that any information subject to a nondisclosure order may still be admitted into evidence in a subsequent criminal case.

Conclusion
The nondisclosure statute has drastically changed. Many more people will shortly become eligible for nondisclosure than have ever been in the past, which means our workloads will increase. The statute is also more complicated than before, requiring more review to determine whether the petitioner meets the new requirements for nondisclosure. This article is only a summary of the changes to the law. For more information, TDCAA’s book Expunction and Nondisclosure is being revised to reflect the new law and will be available in the spring.

In the meantime, the most important questions to ask when reviewing any petition for nondisclosure under the new law are:
•    Does the petitioner have any prior convictions or deferred adjudications requiring registration as a sex offender for any of the prohibited list of offenses (Penal Code §§19.02, 19.03, 20.04, 20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, & 42.072), or for family violence? If so, he is not eligible for any nondisclosure.
•    Was the petitioner convicted of or placed on deferred for any non-traffic offenses while on probation or during the waiting period? If so, he is not eligible for any nondisclosure.
•    Does the petitioner have any prior convictions or deferred adjudications? If so, he is not eligible for automatic nondisclosures or nondisclosures following jail time or straight probation.
•    Did the person receive an order of discharge and dismissal from deferred or straight probation? (Or was he released from jail?) If not, the clock has not yet started ticking on his waiting period.
•    Has any applicable waiting period passed? Except for automatic nondisclosures, a person can get a nondisclosure only after the waiting period has run—five years for felonies, two years for certain misdemeanors, and immediately for all other misdemeanors, or two years from release from confinement.
Endnotes

1 Acts 2015, 84th Leg., ch. 1279 (S.B. 1902), §32, eff. Sept. 1, 2015.
2 Tex. Gov’t Code §411.074(a).
3 Id. at §411.074(b).
4 Id. at §411.072(a)(1)(A).
5 Id. at §411.072(a)(2).
6 Id. at §411.072(b). Some courts automatically issue an order of discharge and dismissal upon successful completion of community supervision. Others issue one only upon the defendant’s request.
7 Tex. Code Crim. Proc. art. 42.12, §5(k).
8 Tex. Gov’t Code §411.072(a)(1)(B).
9 The new Chapter 42A will become effective January 1, 2017. Acts 2015, 84th Leg., ch. 770 (HB 2299), §1.01, eff. Jan. 1, 2017.
10 Acts 2015, 84th Leg., ch. 770 (H.B. 2299), §4.01, eff. Jan. 1, 2017.
11 Tex. Gov’t Code §411.072(b).
12 Id. at §411.072(c).
13 Tex. Code Crim. Proc. art. 55.02, §1.
14 Id. at §411.0725(a).
15 Id. at §411.0725.
16 Id. at §411.0725(e).
17 Id. at §411.0725(d).
18 Id. at §411.073(a).
19 Id. at §411.073(b).
20 Id. at §411.073(a)(2)(B).
21 Id. at §411.073(b)(2).
22 Id. at §411.0735(a).
23 Id. at §411.0735(d). A discharge and dismissal is not necessary for these cases, unlike deferred and straight probation cases.
24 Tex. Gov’t Code §411.0735(b)(2).
25 Tex. Penal Code §43.02.
26 Tex. Gov’t Code §411.0728(a).
27 Or Chapter 42A.702, when the recodification takes place.
28 Tex. Gov’t Code §411.0728(a).
29 Id. at §411.0728(b) & (c).
30 Id. at §411.0745(a) & (b). The petitioner must pay a $28 fee in addition to any other civil filing fees.
31 Id.
32 Id. at §411.0745(e)(1).
33 Id. at §411.0745(e)(2).
34 Op. Tex. Att’y Gen. GA-0255, 2004 WL 2191050, at *2 (2004).
35 Tex. Gov’t Code §411.0765(30).
36 Id. at §411.0765(31).
37 Id. at §411.0775. The evidence must still meet any other admissibility requirements.

 

 

Texas Expunction Law Changes – 82nd legislature

 TEXAS EXPUNCTION LAW CHANGES

Source Texas District and County Attorney’s Association

How the 82nd Legislature changed Chapter 55 of the Code of Criminal Procedure for the better—and for worse

Assistant Criminal ­District Attorney in Collin County

The dust has settled, the compromises have been struck, and the ink is drying. The 2011 legislative session is over, and those of us charged with executing the laws are left to try to sort out the changes. One area that received attention this session was Code of Criminal Procedure Chapter 55, the expunction statutes. As criminal history information becomes more accessible online and accessed by the private sector for employment purposes, expunctions are used more every day. The 82nd Legislature (2011) tried to resolve some perceived problems from the previous versions of the statute and, of course, created new challenges of their own. This article will attempt to summarize the changes and a few areas of confusion that may have to be resolved by the courts or by a future legislature.

Waiting period expunctions
The first major change to expunction law came in the form of “waiting period” expunctions, expunctions granted under Article 55.01(a)(2)(A). Under previous versions of the statute, a person could not receive an expunction unless either the statute of limitations had expired or a felony indictment had been dismissed for certain reasons. This meant that cases with a lengthy or no statute of limitations could not be expunged. For example, a person arrested for sexual assault of a child—even if the police immediately discovered the child was lying and released the arrestee—could never obtain an expunction because there is no statute of limitations for that offense.
Under the new law, however, there is some relief. 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.1 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.2 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.3 But be warned—many trial courts will nonetheless put the burden of proving that there is an active investigation instead on the State.
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.4 The wording of this section of the statute is rather confusing. It appears that a person cannot have a misdemeanor expunged if he is charged with a felony arising out of the same arrest, but if he is charged with another misdemeanor, then he can receive the expunction. How this will play out in practice has yet to be determined.
Another confusing area of this subsection comes from the waiting periods for misdemeanor offenses. The six-month or one-year waiting periods for misdemeanors applies only “if there was no felony charge arising out of the same transaction.”5 It is not clear what is meant by a “felony charge”—after all, if an indictment or information for a felony arising out of the same transaction was actually filed, then under the previous paragraph the person is not eligible at all for a waiting period expunction.6 This would seem to suggest that “felony charge” simply means that the person was arrested for both misdemeanors and felonies in the same arrest, regardless of whether formal charges have been filed. In this circumstance, the felony waiting period of three years will apply. But because a misdemeanor statute of limitations is only two years,7 it would be faster for the petitioner to just apply for a regular expunction when the statute runs instead of waiting for the longer waiting period to run.
The most important thing to remember about these new expunctions is that they are not full expunctions. If they were, they would essentially just change the statute of limitations of all felonies to three years, because the State would have to destroy all of its records if it did not get an indictment filed in that time. Instead, 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.8 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.9 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. If the prosecutor certifies that the arrest records are not needed for use in any criminal investigation or prosecution, including prosecution of another person, then the case may be expunged even before the waiting period has passed.10 This exception would apply in circumstances where the prosecutor has determined that no crime occurred, not simply that the wrong person was charged. If the prosecutor agrees to an expunction under this subsection, then the provision allowing law enforcement to keep the records does not apply.11

Discretionary expunctions
Another major Texas expunction law changes is the addition of discretionary expunctions. Under this section, the prosecutor may, at any point until the person is tried, recommend an expunction.12 This is a drastic change from previous versions of the statute, which authorized any respondent listed in the petition to contest the expunction.13 Even if the prosecutor agreed, any other agency listed in the expunction could oppose. Now, 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.14
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.
However, this new law is also subject to abuse. There are no restrictions on when or how the recommendation must be done. Unlike waiting period expunctions, for example, the petitioner does not need to show that the case is no longer pending. A defendant could begin calling the DA’s office asking for a discretionary expunction from the moment he is arrested, even while an active investigation is pending. While it is of course unlikely that a prosecutor would agree to an expunction in such a situation, it could become burdensome for prosecutors to constantly be subject to such requests. Also, if expunctions are requested so early, the prosecutor will likely not even have any records of the case, as they will still be in the hands of the police agency. It could become difficult to evaluate the requests for discretionary expunctions to determine which are meritorious.
Another area of confusion is in who may recommend a discretionary expunction. The statute says “an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested” may recommend expunction.15 This brings confusion in cases where more than one office may be authorized to prosecute the offense. For example, a theft where the stolen property was taken through several counties, or even a capital murder where a person was kidnapped in one county and killed in another. Care must be taken to avoid forum-shoppers for this type of expunction.

Actual innocence expunctions
Another Texas expunction law changes is for people who were granted relief on the grounds of actual innocence. Although they almost certainly would have been eligible for expunction under the old expunction statute, either as a pardon or a dismissal for reasons indicating absence of probable cause, the legislature created a new form of expunction especially for actual innocence. 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.16 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.17
The main changes in this section come not from the entitlement to expunction but in how agencies must respond to it. In actual innocence expunctions, the State has the duty to prepare the expunction order.18 It must also notify the Texas Department of Criminal Justice if the petitioner is still in custody.19 When the agencies comply with the expunction order, they must send all relevant records to the district clerk.20 Unlike in other expunctions, there is no provision for the agencies to simply redact or delete the records where return is “impracticable.” Once the records are returned, the district clerk must retain the records until the statute of limitations has run for any civil cases relating to the petitioner’s wrongful imprisonment.21
The lack of ability to redact records where return is impracticable could bring challenges to agencies attempting to comply with actual innocence expunctions and make it more difficult for agencies to prosecute the true offender. For example, in a sexual assault case, a new DNA test may show that the person convicted of the offense was actually innocent and identify the true perpetrator. If the actually innocent defendant files for an immediate expunction, the State is required to return all of its records regarding the arrest to the district clerk for retention. If the arrest records include important information for prosecuting the case, it is not clear how the State could obtain copies of it for prosecution of the true offender. Presumably, an actually innocent defendant could agree to including a provision in the expunction order authorizing the State and the police to keep records for investigation of another person for the offense, similar to the provisions of §4(a-2) of Article 55.02, but absent this agreement, there is no explicit authorization for including such an exception in the order. Prosecutors should be diligent in drafting the expunction orders for actually innocent petitioners to ensure that important evidence is not lost.

Prior felonies
Another change in the Texas expunction law statute makes it easier for convicted felons to obtain an expunction. Before, cases that were refused or dismissed could be expunged only if the petitioner had not been convicted of a felony in the five years before the arrest.22 That provision has been removed, so prior felony convictions no longer bar an expunction.

Misdemeanor dismissals
Petitioners whose misdemeanor cases are dismissed also 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.23 This provision existed in previous versions of the statute, but it was limited solely to felonies. Now misdemeanors may also be expunged under this section.

Appellate acquittals
The legislature cleared up some confusion regarding acquittals issued by appellate courts. Under the old law, a person could receive an expunction if he was acquitted by the Court of Criminal Appeals, but it was silent about acquittals from the intermediate courts. The appellate courts were split on whether this meant that intermediate court acquittals could not be expunged or if it was implied in the statute.24 The legislature removed that confusion and explicitly authorized expunctions where the person was acquitted by an intermediate appellate court and the period for discretionary review has expired.25

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.26 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.
Expunction is available only to someone who was arrested for either a felony or a misdemeanor.27 Thus, even under previous versions of the law, someone arrested for community supervision or parole violations would not be eligible for an expunction.28 The legislature opted to make this provision even more explicit, however, and prohibited expunction for arrests pursuant to a warrant issued for violations of community supervision.29

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

Conclusion
Chapter 55 was already a complex and confusing scheme. After the 82nd Legislative Session, some areas of confusion were cleared up, but others were added and the statute was made even more complex in general. How the courts will interpret some of the new provisions remains to be seen, but a prudent prosecutor will carefully review the new statute before wading back into expunction law.
For a more detailed examination of the expunction statute and forms for handling the most common expunction situations, a new edition of Expunction & Nondisclosure by Andrea Westerfeld and Katharine Decker is now available from TDCAA.

Endnotes
1 Tex. Code Crim. Proc. art. 55.01(a)(2)(A).
2 Tex. Code Crim. Proc. art. 55.01(a)(2).
3 See, e.g., T.C.R. v. Bell County District Attorney’s Office, 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.).
4 Tex. Code Crim. Proc. art. 55.01(a)(2)(A).
5 Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(i)(a) & (b).
6 Tex. Code Crim. Proc. art. 55.01(a)(2)(A).
7 Tex. Code Crim. Proc. art. 12.02.
8 Tex. Code Crim. Proc. art. 55.02, §4(a-1).
9 Tex. Code Crim. Proc. art. 55.02, §4(b).
10 Tex. Code Crim. Proc. art. 55.01(a)(2)(A) (i)(d).
11 Tex. Code Crim. Proc. art. 55.02, § 4(a-1).
12 Tex. Code Crim. Proc. art. 55.01(b)(2).
13 Texas Dept. of Public Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.—Houston [1st Dist.] 1994, no writ).
14 Tex. Code Crim. Proc. art. 55.01(b) (“a district court may expunge”).
15 Tex. Code Crim. Proc. art. 55.01(b)(2).
16 Tex. Code Crim. Proc. art. 55.01(a)(1)(b)(ii).
17 Tex. Code Crim. Proc. art. 55.02, §1a(a).
18 Tex. Code Crim. Proc. art. 55.02, §1a(b)(1).
19 Tex. Code Crim. Proc. art. 55.02, §1a(b)(2).
20 Tex. Code Crim. Proc. art. 55.02, §5(a)(1).
21 Tex. Code Crim. Proc. art. 55.02, §1a(d).
22 See T.C.R., 305 S.W.3d at 664-65, citing former Article 55.01(a)(2)(C).
23 Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii).
24 Compare Harris County v. E.B.H., 95 S.W.3d 719, 722 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) with Ex parte Current, 877 S.W.2d 833, 836 (Tex. App.—Waco 1994, no writ).
25 Tex. Code Crim. Proc. art. 55.01(b)(1).
26 Tex. Code Crim. Proc. art. 55.01(a-2).
27 Tex. Code Crim. Proc. art. 55.01(a).
28 See In re Wilson, 203 S.W.3d 929, 931 (Tex. App.—Texarkana 2006, no pet.).
29 Tex. Code Crim. Proc. art. 55.01(a-1).
30 An excellent article in the Municipal Court Reporter, the official publication of the Texas Municipal Courts Education Center (TMCEC), was written by Jim Bethke and can be found here: www.tmcec.com/public/files/File/The%20Recorder/2002/Aug02recorderNo2.pdf. Though nine years old at the time of this writing, the article still contains good law and explains Class C expunctions with greater detail and clarity than we can provide here.

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