Here in Harris County, we're wrestling with implementing HB 171, which amended the expunction statute, CCP art. 55.01, sec. 1, to essentially do three things:

• Take jurisdiction for acquittal expunctions away from the county, justice and municipal courts and give jurisdiction for those proceedings solely to the district courts.
  
  
• Delete the requirement of a hearing before the order is issued.
  
  
• Place the burden of preparing the expunction order on the defendant's counsel, if the acquitted defendant is represented, or on "the attorney for the state" if the defendant was not represented by counsel.

Here's a link to the text of HB 171:

HB 171 Text

Here are my questions about implementing this change in the law:

1. Are your counties charging a fee for acquittal expunctions proceedings? Since September of 1999, Harris County has opted not to charge a fee for these proceedings, apparently because the intent of the Legislature was for this to be a no-fee process, and because the expunction proceedings were essentially a continuation of the original criminal proceeding, remaining in the original trial court. This did not generate any controversy until HB 171 came along.
   
   The Harris County judiciary now wants to route the county, justice, and municipal court acquittals to the civil district courts, and the civil clerks want to charge a fee because they now have to generate a whole new case to implement the expunction and because there are costs associated with sending the relevant governmental entities the order. They correctly cite Articles 53.11 and 102.006 of the CCP as authority for the fees.
   
   Is there an AG opinion, or other compelling legislative history to justify no-fee status for any of these acquittal expunction petitioners?
   
   
2. What is the significance of the thirty-day rule in the statute? It is more important now because HB 171 significantly slows up the filing and processing of the petitions. I'm afraid we may see more last-minute petitions filed just before the thirty-day deadline, giving the State very little time to investigate whether any exceptions to expunction apply.
   
   
3. If there is no hearing for these proceedings now, how does the State assert the exceptions to expunction (i.e. Arts. 55.01(c), 55.02, sec. 4)?
   
   
4. Who handles the municipal court acquittal expunction proceedings in district court? Is the city attorney the "attorney for the state" who has to prepare the order for the pro se municipal defendant who, for example, beats his charge for violating the city noise ordinance? Is it the district attorney?

I'm sure there was a really good reason why the Lege thought these changes were necessary (sigh). I welcome your thoughts on how you plan to handle these expunctions.

Thanks!

Scott Durfee
General Counsel
Harris County District Attorney's Office

I am disheartened that a distinguished association member like Scott Durfee couldn't even drum up a single response, or at least a sardonic quip from the civil ranks. Accordingly, I offer mine.

Question 1. If it's a new case, we charge for it. In fact, if it sits still for longer than 45 minutes, we charge for it.

Question 2. I don't know.

Question 3. I don't know. (Perhaps an assertion of the exception(s) in the state's answer, along with a request for a hearing prior to granting any relief requested by the applicant, would at least permit an assertion of error under Tex. R. App. P. 33.1(2)(b). I suppose, if the judge refused to set a hearing, mandamus (and an emergency stay of the expunction proceeding) might be available.).

Question 4. We recently shimmied out of handling a Republic of Texas appeal from municipal court by asserting that the city attorney was the "attorney for the state," so it's not unprecedented.

When you figure this stuff out, please let me know so I can pirate your forms.

We're hoping to start collecting filing fees on aquittal expunctions our county and I'm curious:

How much of the filing fee goes to the County?

Is there a significant amount of indigent applicants for acquittal expunctions from whom no fee can be collected?

In short, how significant is the revenue generated by collecting fees on acquittal expunctions?

We don't charge a filing fee for acquittals, just a fee for mailing copies to everyone, so I guess the revenue generated is "nothing".

We're still having occasional issues with the whole hearing/order process discussed in the first posts, but I think we've settled in at last.

While I hope this idea does indeed save prosecutor positions in Dallas, I make note of this: the expunction procedure is initiated merely by filing a "request"; the person acquitted appears to have an absolute right to expunction "except as provided by Subsection (c)" of art. 55.01. I just do not see how the "shall" used in art. 55.02, sec. 1 can be conditioned on payment of a fee by the person who filed the request. But see, e.g., C.A.S., 128 S.W.3d 681. To me, you have to remember that no criminal defendant is in court on his own initiative and the situtation is not really analogous to charging adminstrative fees for dismissals as under various provisions of the Transportation Code.

I agree that when the acquittal is obtained in a lower court, that the District Clerk must end up filing some type of new proceeding, I am just uncertain that it is a suit or action under sec. 51.317, Gov't Code or that performance of the service can be delayed under sec. 51.319 (3), Gov't Code. As the Attorney General opined, 51.317 applies only to civil actions or suits and a request for expunction seems even more closely tied to the criminal proceeding than the pre-indictment petition for writ of habeas corpus considered in Op. Atty. Gen. DM-295. It seems an important question in light of sec. 103.002, Code of Criminal Proc. and Brackenridge, 11 S.W. at 633.

This would all be easier if they'd never moved misdemeanor acquittal expunctions out of county court...