Expungement

By: Robert M. Moore

Copyright 9/5/09

Expungement is an area of practice distinct from ordinary Criminal Practice. An Expungement allows for the complete and entire removal of any and all traces of any physical records of any criminal investigations and any collateral records of most criminal cases filed as Class “A” or Class “B” Misdemeanors, as well as for most Felonies, after the Criminal case has been disposed of and completed with an outcome of “Not Guilty”, or a Straight Dismissal not preceded by a Deferred Adjudication; or the failure to file Criminal Charges after the Statute of Limitations has expired.

A Class “C” Misdemeanor is the only crime that can be immediatly expunged after a Deferred Adjudication and Dismissal; or after the expiration of the two (2) year Statute of Limitations; or immediately if there is a finding of “no probable cause”.

The Texas Code for Criminal Procedure Section 55.02 (CCP55.02) is very specific in setting forth rights to have certain and specific criminal charges expunged and sets forth the elements that must be included in a PETITION FOR EXPUNGEMENT. Many details must be included in the petition and the petition must be filed in the same Court where the criminal charges were originally filed against the defendant. The District Attorney in the County where the charges were filed must be served with the PETITION FOR EXPUNGEMENT, along with all involved Police, Governmental or private agencies that have any records pertaining to the original Complaint or Indictment if such were ever filed.

After the expiration of 30 days from service on all Parties, a Hearing will be set by the Clerk of the Court and the District Attorney and other agencies will appear presenting any defenses or arguments they may have against allowing those records to be expunged. 

The Expungement Statute gives an absolute right to immediately file to expunge records where a defendant has been acquitted and found "Not Guilty" after a Trial; or where the Petitioner can establish that he or she is no longer subject to prosecution for an offense arising from the same criminal episode because the Statute of Limitations has passed, and no charges were ever filed. Expungement on these grounds is relatively simple as compared to an attempt to obtain and file immediately for an Expungement where criminal charges have been "Dismissed" and the Order of Dismissal is silent or makes no specific finding on the issue of “probable cause”.

To file a Petition for Expungement where a case has been "Dismissed", immediately following a “Dismissal”, and there is no finding made on the docket sheet that there was “no probable cause”, the Petitioner must prove that there was no "Probable Cause" for the charges having been filed from the beginning. This creates a true adversarial hearing and a "Mini-Trial" concerning the charges brought in that case and the Court must make a fact-finding that there was in fact "No Probable Cause", or Fraud, or a "Mistake" in the filing of the charges. This is a more difficult standard and success depends on the underlying facts of the case and the relative strength of the evidence shown in the Police and investigating agencies reports.

If a notation or finding is made on the Order of Dismissal of “no probable-cause” then the PETITION FOR EXPUNGEMENT may be filed immediately after the DISMISSAL, and an ORDER obtained without any waiting period.  Otherwise, absent such an initial finding of “no probable cause” being made as a docket entry or specifically referenced in the ORDER OF DISMISSAL – “at the time the DISMISSAL was granted”, the client must wait until the two (2) year Statute of Limitations has expired, in Misdemeanors, and longer in Felony cases, depending on the type of FELONY and the Statute of Limitations in such a FELONY case.

But remember, this procedure is not available (except in Class “C” Misdemeanor cases) where an ORDER OF DISMISSAL is made following the completion of Probation under a Deferred Adjudication. In those cases, the Expungement of records cannot be made and the Defendant’s only alternative is to file and see the limited rights afforded by Statute under a Petition for Non-Disclosure.

See resource link: The Texas Code for Criminal Procedure Section 55.02 (CCP55.02)