The Prosecutor, September-October 2012, Volume 42, No. 5

Advanced expunction law

Several months after big changes to the expunction statute, prosecutors are finding themselves with some tricky cases. Here are the answers to some burning questions.

Although the expunction statute is not long, it is complex. The statute attempts to create a broadly applicable set of rules that balance the competing interests of a wrongly arrested person wanting to get a fresh start without the stigma of a criminal history, the State’s need to preserve records for future use, and the public’s right to information. The result is a labyrinth of “if-then” scenarios that challenge the most determined flow-charter. Every time I speak or write on expunctions, there inevitably follow at least a few questions that lead to breaking out pen, paper, and statute to sketch out exactly how an expunction should or should not be granted, or even more often, how an agency complies with an expunction in a particular circumstance.
    This article is an attempt to answer a few of the unusual situations that have come up around the state regarding expunctions and somehow always manage to find their way to my in-box. Some facts have been changed to protect the innocent, the guilty, or the confused, but these are all based on real questions that have been faced by those of us struggling to deal with the expunction statute. I hope they provide some guidance to those faced with the same situation—or at least a bit of relief that other people are confronting the same weird problems you are!

Can I object to a ­discretionary expunction ­someone else agreed to?
The No. 1 question since discretionary expunctions were created in 2011 has been who can agree to them and who can object to them. A discretionary expunction is where a prosecutor recommends an expunction at any time before the person is tried for the offense, regardless of whether the person would otherwise meet the requirements for an expunction.1 If more than one prosecutor is authorized to prosecute the case—for example, a theft where property is stolen in one county and moved to another2—then either prosecutor could recommend the expunction. So long as a prosecutor recommends it, the judge may grant the expunction.
    But this is a may grant expunction, not a shall grant like the rest of the expunction statute. Discretionary expunctions are discretionary on the part of the judge as well as the prosecutor. And the same procedural rules regarding notice to agencies and holding a hearing still apply.3 Thus, another prosecutor’s office or any other agency affected by the expunction must receive notice and could object at the hearing to the expunction. It would then be in the judge’s discretion to grant the expunction or not.

How does it work if there are multiple charges out of the same arrest?
It is not at all uncommon to have more than one charge result from the same arrest. Perhaps a person is arrested for driving while intoxicated, but he also has marijuana in the car. Ultimately the possession of marijuana is dismissed or reduced to a Class C deferred, but the defendant is convicted of driving while intoxicated. Can he get an expunction of just the marijuana charge?
    The short answer to this one is “it depends.” There is currently a circuit split on this issue, and the Texas Supreme Court has not weighed in on the question.4 The First District Court of Appeals in Houston has long held that an expunction order may carve individual offenses out of an arrest and expunge only the ones that meet the expunction requirements,5 but this seems to go against the expunction statute’s focus on the records of “the arrest” rather than “the offense.”6 More recently, the Austin and Waco Courts of Appeals have re-focused on this arrest requirement and held that the entire arrest must be able to be expunged to qualify for an expunction.7 The Austin and Waco approach appears to be a more accurate reflection of the statute, and it is much more practical given the difficulties in expunging one offense when it is intermingled with the rest of the file.
    If your jurisdiction allows partial expunction of an arrest, then the records and files associated with both offenses should be assembled after the expunction is granted. Any references to the expunged offense must be deleted or redacted from the files of the non-expunged offense. If all records are in a single file, then references to only the expunged offense would be deleted or redacted and the rest of the file would stay the same. A note should be placed in the file explaining that portions of the file were redacted pursuant to an expunction order so that future prosecutors handling the case will know why parts of the file have been redacted.

Can a finding of not guilty by reason of ­insanity be expunged?
Generally acquittals can be expunged, but does the same rule apply if a defendant was found not guilty by reason of insanity under Chapter 46C? That will depend on the date of the offense. The current insanity defense provides that a NGRI finding is not considered an acquittal for the purposes of Chapter 55;8 thus, a person acquitted under this statute will not be eligible for an expunction.
    But Chapter 46C was adopted in 2005 and is applicable only to offenses committed after September 1 of that year.9 The prior version of the statute simply provided that a person found not guilty by reason of insanity “shall stand acquitted of the offense charged.”10 Thus, a person who committed an offense before September 1, 2005, and was found not guilty by reason of insanity can obtain an expunction as an acquittal.

Can a pretrial diversion be expunged?
Pretrial diversions are becoming more common as prosecutors look for new ways to resolve cases. But can someone completing a pretrial diversion get an expunction?
    In the past, a person receiving a pretrial diversion could eventually obtain an expunction as a dismissal, but she would have to wait out the statute of limitations before becoming eligible. In 2009, however, the legislature amended the statute to allow a person an immediate expunction upon completing “a pretrial intervention program authorized under §76.011, Government Code.”11 If your pretrial diversion program qualifies under §76.011—which is the statute authorizing probation departments to supervise pretrial diversion participants and assess fees upon them—the defendant can obtain an expunction as soon as she completes the program.12

Can a case be expunged if the petitioner received judicial clemency after serving probation?
Section 20 of Article 42.12 allows a person who received community supervision to have the verdict set aside and be released from “all penalties and disabilities” of the case.13 Does receiving judicial clemency under this section mean he can also get an expunction?
    No, a person who receives judicial clemency is not eligible for an expunction. A person who received judicial clemency still served community supervision, which bars an expunction, and the order releasing him from “all penalties and disabilities” does not alter that.14 It is also evident from the judicial clemency statute itself that it was not intended to allow an expunction. Section 20 specifically provides for records of the case to be maintained so that it can be used if the defendant is convicted of another offense or applies for a child-care license.15

Can the right to ­expunction be waived?
A defense attorney is asking for a pretrial diversion for his client, a reduction to a Class C deferred, or a dismissal of some charges for a plea to others. You are otherwise agreeable to the plea, but it would make him eligible for an expunction and you do not think that is warranted in this case. Is there anything you can do?
    A defendant may waive his right to an expunction. The right to expunction is purely a statutory privilege, not a constitutional right,16 and a defendant has the right to waive any right secured to him by law.17 Therefore, as long as the waiver is done knowingly and voluntarily, a defendant may waive his right to an expunction.18 This is a good option to give a defendant the benefit of the dismissal or deferred but preserve information the prosecutor believes may be important at a later date, such as a finding of family violence in a Class C assault.
What if I didn’t find out about the expunction until after it’s been ­granted?
There may be all sorts of wonderful objections you could raise about a particular expunction, but sometimes unfortunately the first you hear about it is after the order has already been granted. Is there anything you can do? Even if you are outside the usual 30-day limit for filing a notice of appeal, you may still be able to appeal the case as a restricted appeal. Because expunctions are civil, you can file a restricted appeal so long as you file the notice of appeal within six months of the judgment.19 Only a party who did not participate at trial may file a restricted appeal.20 This type of appeal was formerly called a writ of error.21
    The one restriction to this type of appeal is that error must be apparent on the face of the record.22 This includes all papers filed in the case and the reporter’s record of any hearing.23 That means that if no answer was filed or hearing held, then the petition for expunction itself must show that the petitioner was not entitled to an expunction to prevail. But remember that one requirement of expunction is notice to all parties. If the record reflects that the order was granted less than 30 days after the petition was filed or if the court records do not show service to the agencies, then the expunction may be reversed on that ground.24

Can a witness testify about her experiences with a case even after an expunction?
A person is charged with assault, but the case is dismissed and ultimately expunged. Later, the same person is charged with another assault against the same victim. In her testimony, the victim mentions that the defendant also assaulted her once before, the expunged case. Is this proper?
    The victim’s testimony is not a violation of the expunction statute (though it may, of course, be inadmissible for various other reasons). An expunction order covers only the records and files of government agencies;25 it does not cover private entities, and it does not erase a person’s memory. A witness may testify about a matter that was expunged so long as she is doing it solely from her own memory or private records.26 A witness could, for example, testify about what she observed, what she wrote in her own notes, or even from records of a non-governmental agency such as a hospital, therapist, or newspaper. Even a police officer could testify from his memory of past encounters with a defendant. But the witness may not refresh his recollection by referring to any records and files of a government agency such as a police report. (Of course, all of these records should have been destroyed pursuant to the expunction order, so they would not be around for people to refresh their recollections from in the first place.)

If someone is acquitted and gets an expunction, how can I prosecute the right defendant if all my records are gone?
The case goes to trial. The defendant is acquitted and promptly obtains an expunction. Except the State has identified “the real killer” and wants to prosecute that person for the crime. How are you going to do that when most of the records of the case are now subject to the expunction order for the first defendant?
    There is an exception in the expunction statute for just this situation. Under Article 55.02, §4, the court may order an exception in certain circumstances, including following an acquittal where the records and files are necessary for the investigation and prosecution of another person for the same offense.27 This exception allows the police and prosecutors to keep their records, while all the other agencies expunge theirs.
    Another time a §4 exception might be used includes if the records and files are necessary for prosecution of any person for another offense.28 Unlike the acquittal exception, this includes prosecuting the expunction petitioner himself. This would be useful if the person is acquitted on the underlying case but a bail jumping or escape case is still pending. The records of the original case would be necessary to prosecute the second one. Also, this applies to civil