Have received two different opinions concerning whether a Class C conviction (not a deferred) is subject to expunction. Statute not really clear. For those who deal with expunctions, what has been your practice: OK or Oppose? Thanks.

First, let me point you to the wonderful new book "Expunction and Nondisclosure" from TDCAA.

A Class C deferred is subject to expunction, but only in certain circumstances. Basically, you have three requirements for the expunction: (A) statute of limitations has run or felony dismissed for lack of probable cause, (B) not pending, no final conviction, and no community supervision for anything other than a Class C misdemeanor, and (C) no felony convictions in 5 years preceding arrest.

The Legislature, in its infinite wisdom, chose to give Class C deferreds a pass in section B. So the person is entitled to an expunction, but only as long as they qualify under sections A & C as well. So the SOL needs to run, and he has to have a clean felony record.

There's a big debate (around here, at least) about whether the SOL should have to run on a Class C since it's jeopardy-barred anyway. But the Leg chose the language "SOL", not "jeopardy-barred", and the Supreme Court recently decided that a Class C deferred had to wait for the SOL to run, although they didn't address the jeopardy-barred argument. (Beam v. State, 226 S.W.3d 392) So in Collin County, at least, we require the SOL to run before giving an expunction on a Class C.

And I just noticed that your post actually says a non-deferred Class C. I should read more clearly, shouldn't I?

Anyway, a non-deferred probation of any kind -- Class C or otherwise -- is not entitled to an expunction. The statute very clearly says an expunction may be granted only if the charge "has not resulted in a final conviction." Art. 55.01(a)(2)(B). The only pass Class Cs get is on the community supervision aspect of it. So a deferred Class C can get an expunction, but a regular Class C cannot.

I agree with Andrea. Here is the reply I posted on the Civil forum*:

See: Rodriguez v. State, 224 S.W.3d 783 (Ct. App. -- Eastland, 2007 no writ), which holds that the requirements of 55.01(a)(2)are not satisfied when the arrest results in a Class C conviction. (citing Texas Dep't. Pub. Safety v. Aytonk, 5 S.W.3d 787 (Ct. App. -- San Antonio, 1999 no writ.) My position is that the expunction statute is there to protect people who were wrongfully arrested...not those who are successful in plea bargaining an arrest down to some lesser offense...including a Class C. The only wiggle room provided by the statute is if the plea bargain gets the offense down to a Class C for which the defendant is given deferred adjudication, in which case the person would meet the requirements of 55.01(a)(2)(B), provided the limitations period for the original offense has expired.

* - the duplicate thread on the Civil forum had been deleted in favor of this thread - SE

[This message was edited by Shannon Edmonds on 11-08-07 at .]

[This message was edited by Shannon Edmonds on 11-08-07 at .]

We avoid all of this by having the defendant waive any right to expunction if we resolve a case with a Class C.

I like how you think, JB.

What if you start out with a Class C? Or the defendant gets a Class C as a lesser-included offense? Unfortunately, you can't always head the issue off at the pass.

There is no "right" to expunction. It is a statutory remedy...a privilege...so it can always be waived as part of a plea agreement.

Yes, but you don't always have a plea agreement.

Well, a plea agreement covers 95% of all criminal cases.

What felony case would get reduced to a Class C, especially in Williamson County?

Hypothecially.

Andrea is exactly right.

Entitlement to expunction is purely statutory and satisfaction of all conditions is mandatory and holds equal dispositive weight. Thus, unlike petitions for non-disclosure, there is no need for the petitioner or state to prove up the argument that the granting of the expunction is or is not in the "best interest of justice".

For non-disclosure, judges may, as a matter of discretion, use this as a basis to deny or grant relief. Multiple courts of appeals have stated they do not have jurisdiction to hear appeals from such proceedings.

In regards to attaining expunction under the Class C deferred scenario, the petitioner must satisfy 55.01(a)(2)(A), (B), and (C). Each of the three is equally dispositive. Thus, if the petitioner satisfies each, he is entitled to relief. For a judge to deny relief is an abuse of discretion and will inevitably be reversed on appeal. Likewise, it is also an abuse of discretion for a judge to use equity in deciding who is and who is not entitled to expunction. Using equity to grant expunction (with the exception of 55.01(b)) will inevitably trigger an appeal from DPS or other interested party and produce a reversal.

Those receiving final convictions on any crime (without subsequent acquittal by the court of appeals), even fine only crimes, are never entitled to expunction.

The conclusion in regards to attaining expunction is a rather simple one once you completely understand Chapter 55. Either the petitioner is entitled or he is not.