The procedure under art. 55.02(1) seems a little strange to me. How would you want to go about proving the former defendant "remains subject to prosecution for" another offense "occurring during the criminal episode"? And is it perhaps actually the burden of the defendant to show that he is not subject? Who or what is "the State" that is entitled to notice? Generally the prosecutor who achieved the acquittal does not represent all of the agenices that will be affected by the expunction order, but is he the only one required to be notified? How much notice do you get? (My judge decided 3 days was probably desireable). If the court failed to provide for retention of records in accord with 55.02(4)(a) would you appeal (notice that "may" is used in this section)? In my case the records will be necessary for a parole revocation hearing, but again, I am not entirely clear how I "establish" that.

Anyone have experience with 55.02(1)? (I realize not everyone has to suffer an acquittal, much less one followed by an expunction request).

Maybe this procedure was made just a little too quick and easy.

I'm no expert on expunctions, but I understood 55.02(1) to be pretty much automatic as far as the particular offense or offenses for which the defendant was acquitted as long as the defendant requested an expunction from the trial court and notified the prosecutor. I presume the expunction only applies to the offense(s) which resulted in an acquittal (after a bench or jury trial to which jeopardy attaches).

If you have questions, TDCAA has a good book on Expunctions. You might also try contacting J. Frank Davis at DPS (512)424-2000 who is the expunctions attorney for our Crime Records Bureau. He has been handling expunctions for a good 10 years and is thoroughly familiar with the laws.

Janette A

We've always treated "the State" as being the DA's office for acquittal expunctions, although most people just send notices out the same way as they do for other expunctions. (Most people don't seem to realize there ARE different kinds!)

As far as "remains subject to prosecution for", technically speaking I would say it's the petitioner's job to prove he's not, since he has to show he's entitled to an expunction. But practically, that's always something I allege in my answer and denial. I've never had to actually argue a "remains subject" in the hearing--they usually just agree to postpone the expunction stuff until that case has been resolved--but I would probably call the prosecutor assigned to the case to prove it up, or maybe the lead officer.

I've done a few objections in that subsection, but most were the "convicted of" variety and I only had to introduce the J&S. But we rarely have to have contested hearings around here. I agree to everything that's statutorily authorized, and the times I have to object, they generally will just not show up after my answer or we'll stipulate to facts and just have legal argument.

Check out the truly amazing and inspirational "Expunctions & Nondisclosures" book TDCAA put out last fall. And feel free to email me if you have any questions. I feel like I do nothing but answer expunction questions -- from prosecutors and defense attorneys! -- all day sometimes.

Andrea, you're supposed to be on vacation. Check your email.

Sorry, it's like Candyman or Bloody Mary -- say "expunction" three times and I appear.

Thanks Andrea. Did not mean to interrupt anyone's vacation. I got the requested limited retention of records under sec. 4, so all is well. Still seems like other agencies should be entitled to complain about lack of notice.

Oh, you are entitled to complain. That's what this forum is all about.

I agree, Martin. (And don't worry about the disruption, I was waiting on my flight and taking advantage of airport wireless. ) I get a lot of calls from DPS to get copies of petitions from acquittal expunctions, and the clerks all get very confused on what they're supposed to send when. It doesn't seem right that you can be subject to an expunction but not have the right to get notice of it.