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
Another major change to expunction law 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 change in expunction law 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.
Another change in the expunction 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.
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.
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
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
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.
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.