I've got a case where a defendant (a day before his jury trial was to begin) entered a plea and received a 3 year deferred. I knew the judge was friends with the def but I thought he could be fair enough at a jury trial. After 30 days, the judge granted an ex parte request to terminate the probation and dismiss the indictment. Now, the def's lawyer has filed a Motion for Nondisclosure. It has only been about 3 months since the deferred pro was terminated. As I read 411.081 of the Gov Code, the petition can't be filed until at least 5 years after the deferred termination in the case of a felony (which this was). I filed a response setting this out but the judge has set it for a hearing. A cursory review of the case law indicates that the judge's ruling will not be an appealable order. I sure would appreciate some ideas on how to proceed.... I'm thinking about a Writ of Prohibition to keep the judge from hearing the matter. Of course, I guess I could go with a Writ of Mandamus after the fact. Thanks.

First off, check out the wonderful book "Expunctions and Nondisclosures" from TDCAA.

Second, I don't think a writ of prohibition is the way to go. There's no legal reason to prevent the judge from conducting a hearing. That's the time when you're supposed to be presenting the law and the proof that he isn't eligible for a nondisclosure. Be sure to put in good arguments at the hearing and hopefully the judge will do the right thing.

If the judge goes against the law and grants the nondisclosure, most courts have found that it's not appealable, although this is still something of a gray area. Corpus Christi has found it had jurisdiction to consider an appeal. See Fulgham v. State, 170 S.W.3d 836.

But I think a mandamus would probably be your best bet. I tend to agree with the courts finding appeal isn't an option, and it's not discretionary for a judge to grant a nondisclosure before the waiting period has expired. You don't have any other legal options, assuming appeal isn't an option, so it would seem to fit under a mandamus.

Feel free to email me (see my profile for the address) and I'll connect you to the nondisclosure guru in my office. Good luck!

He didn't even have to say your name three times!

You really are da' bomb.

Well, this isn't an expunction, so this was a standard passing-by response, not a summoned one. Clown shoes.

Thanks, Andrea, I just read Chapters 4-6. Great stuff! Hopefully, I won't need a writ of mandamus form but I may be contacting you to see if someone up there has one. Thanks again.

We've never had to do one, but I'm sure we could come up with something if necessary. Keep us updated!

Art. 55.01. RIGHT TO EXPUNCTION.  
(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:

  (1) the person is tried for the offense for 
      which the person was arrested and is:
    (A) acquitted by the trial court, except as 
        provided by Subsection (c) of this 
        section;  or
    (B) convicted and subsequently pardoned;  or

  (2) each of the following conditions exist:
    (A) an indictment or information charging the 
        person with commission of a felony has 
        not been presented against the person for 
        an offense arising out of the transaction 
        for which the person was arrested or, if 
        an indictment or information charging the 
        person with commission of a felony was 
        presented, the indictment or information 
        has been dismissed or quashed, and:
        (i) the limitations period expired before 
            the date on which a petition for 
            expunction was filed under  
            Article 55.02; or
       (ii) the court finds that the indictment or 
            information was dismissed or quashed 
            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 it 
            was void;
    (B) 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 any 
        offense other than a Class C misdemeanor;  
        and
    (C) the person has not been convicted of a 
        felony in the five years preceding the date 
        of the arrest.

The way I read this, the only way to get it expunged before that statue of limitations expires is with an affirmative finding by the judge that the person didn't actually commit the offense.

As I understand it, a Writ of Prohibition only applies when the judge lacks jurisdiction. I'm sure that the legal definition of "jurisdiction" is more complex than my lay understanding of the word but still I wonder if has jurisdiction over something that he could do in the future, but could not do today... or does he only gain jurisdiction at the point in the future when he is legally authorized to take the action... after the limitations pass or he makes a finding that the conviction was bogus. Oh well.

Alex, he's talking about a nondisclosure, not an expunction. It's a totally different statute. Check out section 411.081 of the Government Code.

Well that is embarrassing.

SUBCHAPTER F. CRIMINAL HISTORY RECORD INFORMATION
411.081.  APPLICATION OF SUBCHAPTER.
(a) [...]
(b) [...]
(c) [...]
(d) [...] A person may petition the court that placed 
    the person on deferred adjudication for an order 
    of nondisclosure on payment of a $28 fee to the 
    clerk of the court in addition to any other fee 
    that generally applies to the filing of a civil  
    petition. The payment may be made only on or after:
    (1) [... most misdemeanors ...]
    (2) [... specific misdemeanors ...]
    (3) the fifth anniversary of the discharge 
        and dismissal, if the offense for which 
        the person was placed on deferred 
        adjudication was a felony.

Perhaps you could derail it if you can think of a method to force the clerk to issue a refund check for the $28 fee because it cannot legally be paid for 5 years.

Good luck with that option.

Maybe baking a cake for the clerk would work...

I've had many a day like that myself.

I don't want the idiotic defense lawyer to get his $ back. I've told him that his filing was premature and his response was to set it for a hearing. I just want the judge to deny the motion for nondisclosure...