The last few months have been exciting ones for your Austin Expunction Attorney. The dust is starting to settle regarding what the new Texas expunction law means for Travis County citizens seeking expungement in Austin. More on that later, but for now here is the synthesized version of the two bills that changed the expunction statute as of 9-1-2011. This post covers only Art. 55.01 of the Code of Criminal Procedure, which deals with a person’s right to expunction – who is eligible, what the new timelines are, and a few new restrictions on eligibility for expungement.
A few points about the new timelines for expunction – 180 days for Class C misdemeanors, 1 year for Class A or B misdemeanors, 3 years for felonies.
1) The new timelines for expungement that everyone has been buzzing about are of very limited utility. First, the new timelines apply only to cases that have not been filed – that is, where there was an arrest, but no indictment or information filed formally charging an offense to be expunged. This is rarely the case, unless either there was a mistake (which is covered in a separate area that was operable under the old law anyway), or a situation where, for whatever reason, the State dropped the ball and forgot to file the charges. In the latter case, requesting an expunction before the statute of limitations runs is akin to poking the State with a sharp stick, saying “ha, ha, I’m entitled to an expunction now” and basically daring them to file charges they forgot to file in the first place. Because the statute of limitations has not run, they can do that all day long and you shoot yourself in the foot.
2) Let’s say you get away with it – you request your early expunction and they don’t file the charges. Unless you get the prosecutor to “certify” that the files are not needed, they can keep their records, and so can the “applicable law enforcement agency”, under 55.02 Sec. 4(a-1). This could mean the arresting agency, but could also conceivably be any law enforcement agency named in the statute. So, without that certification, what appears to be an expunction is not an expunction at all. What’s worse, in order to make it a full expunction, you would have to wait until the statute of limitations runs and then petition for an additional expunction, which entails another round of court costs and filing fees.
3) Let’s say you wait out the new timeline, then get certification from the State. Isn’t that a benefit of the new timelines? Not really, considering 55.01(b)(2), a new provision that allows the prosecutor to recommend expungement at any time, regardless of any timeline or whether a case has been filed.
So in short, if you want to get an expungement without waiting until the statute of limitation runs, your best relief comes from the recommendation procedure in 55.01(b)(2), and not from the new timelines. I don’t know when you would ever want to file for the “non-expunction expunction” you would get under the new timeline without certification.
(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:
(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or
(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor, provided that :
(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or
(d) 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; or
(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or 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 the indictment or information it was void; or
(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.
(a-1) Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Section 21, Article 42.12.
(a-2) Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest.
(b) Except as provided by Subsection (c), a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:
(C) acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or
(2) an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.
(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
(d) A person is entitled to have any information that identifies the person, including the person’s name, address, date of birth, driver’s license number, and social security number, contained in records and files relating to the arrest of another person expunged if:
(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person’s identifying information without the consent of the person asserting the entitlement; and
(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person’s identifying information.