So, we got all kinds of changes with the new expunction law.

1. on a dismissal, it looks like we don't wait for any time period to pass. Is that right?

2. DA consent---how are y'all handling this?

Please Andrea, say you're putting together a new handy dandy book.....

I'm not putting together a new handy-dandy book -- it's already done! The revisions are in, the book's at the printers, and I believe that it will be available for purchase at the annual.

To very briefly answer your questions:
1. If a case is dismissed, it's still treated the same as before -- either statute of limitations must run or they must show it was dismissed for reasons indicating absence of probable cause to believe the D committed the offense. (This second bit now applies to misdemeanors as well as felonies, though.) The new waiting period provision only applies to cases where no indictment or information has ever been filed.

2. With a massive headache! :P I would highly recommend putting together and publicizing an office policy on this, because otherwise every single person who's ever been arrested and hasn't gone to trial will be asking for it and you won't be able to get anything else done. We're still working on ours here, but my basic philosophy is that it should be rare and limited to the "never should've been arrested in the first place" situations and oddities that should be but aren't otherwise covered by the statute.

Great!!
I was really hoping y'all had this covered.

Our legislative update is on Friday. I hope to have a better handle of what's going on. I'll let you know what we come up with.

Not only is the new book updated with all the recent changes, but Andrea has written an article for the Sept.-Oct. issue of the Texas Prosecutor that will also highlight the effects of some of the changes. Keep an eye out for that in your mailbox!

Andrea, I was going to email you with a question from a recent attendee of one of our legislative updates, but since RK was kind enough to provide a more public forum, I'll hitch a ride on her thread.

Specifically, with regard to the "discretionary expunctions" authorized by new CCP Art. 55.01(b)(2), I was asked if they are limited to the same types of dismissals as expunctions under subsection (a)(those based on "mistake, false information, absence of probable cause," etc.). I don't see that (b) relies on or references those limitations in (a) at all, so my answer has been "no"--this new type of expunction applies to ALL dismissals. In fact--and as you point out in your article--it even applies to pending cases that have not yet been dismissed(!).

Do you agree with that reading?

I agree with that reading, Shannon. The only limitation on the (b)(2) discretionary expunctions is that the case has not gone to trial. Anything before that -- from the moment after arrest through the pre-trial conference -- is fair game. I'm not sure how it would treat cases that pled out, but my thought would be that's the equivalent of trial.

Thanks, Andrea.

And yes, I agree that pleas = trials. Just think of pleas as mini-bench trials. (But don't try to list them on your application for board certification, I don't think that will fly!)

I have a lingering question from the leg update.

Is a defendant entitled to an expunction if the statute of limitations has run ---even if the case was dismissed because the defendant paid restitution or pled to another case?

Yes. Reason for the dismissal doesn't matter if the SOL has run, it only matters if you're trying to get an expunction before the SOL runs. If the SOL's run, all they have to show is:
- no case filed or case dismissed
- nothing pending
- no conviction
- never served probation on the case (other than Class C deferrereds)

The requirement that the petitioner wasn't convicted of a felony in the 5 years before the arrest is gone.

That's what we thought. Just had to triple check. Thanks.

Suppose D is arrested for felony assault, misdemeanor DWI, and resisting arrest. In return for D's plea on the resisting, the prosecution dismisses the DWI and 12.45's the felony into the resisting.

Or, suppose D is arrested only for DWI, which is dismissed for D's plea to obstructing a highway.

Under the post-090111 statute, are the dismissed DWI and the 12.45'd felony in the first hypo expungible? Is the dismissed DWI in the second hypo expungible? (I was successfully contesting the expunction of these charge-bargained dismissals and 12.45s under the pre-090111 statute.)

Giselle

The most reliable approach is to work out the details of what is and is not going to be expunged during plea negotiations and put those details in writing in the plea agreement. See The Perfect Plea.

I consider charge bargaining the same as plea bargaining -- whether you plead to an actual lesser or if the DA agrees to dismiss and recharge something else entirely, you have still pleaded guilty to the offense you want to have expunged. That renders you ineligible for an expunction, because you either have a conviction or served community supervision. Just changing the name of the offense doesn't fix it.

12.45s, though, are still eligible to be expunged. The defendant didn't get convicted or serve probation for that offense.

I agree with JB that the best way to make sure these offenses won't be expunged is to make it part of the plea bargain.

Actually, I won an appeal in the Third Court on a felony 12.45 that Charlie Baird had ordered expunged. The Court held that a disposition under section 12.45 is not a dismissal. I haven't yet looked at the amended statute to see whether the analysis would be different. That case--Travis County Dist. Atty v. M.M--is not a final decision, as I moved for rehearing over a year ago on another issue in that case (i.e., severability of the dismissed DWI) that I lost, and my rehearing motion is still pending. My first hypo in the earlier post--felony assault, DWI, resisting arrest--is based on the facts of M.M.

Congratulations on winning that appeal. An interesting opinion.

Just wondering, though, how you "expunge" the records related to a DWI when the records of the assault are intertwined and related to the same course of misconduct. This seems ridiculous.

My thought exactly, JB. All the records are so interblended that expunction of some of the "records and files relating to the arrest" would really impair the availability and legibility of the rest of them.

For me the issue is, "When multiple, legitimate charges arise out of a single arrest or criminal episode, is the unit of expunction the arrest or the charged offense?" An expunction order permits the petitioner to generally deny the occurrence of the arrest. I think this is some indication that the unit of expunction is the arrest. Plus, it would be absurd to permit a person to deny that she was arrested when she received probation for one of the charged offenses.

I understand a defense attorney has told a potential client he can get a Theft Over $750.000 probation expunged from a client's record from 1991 since it would only be a misdemeanor today.
Has anyone who has studied the new expunction law read anything which would allow this?
The person in this case successfully served out his probation.
I haven't seen any basis for this in the expunction law before. Appreciate it if anyone could let me know if they've seen a basis for this person's claim under the new law.
Thank you.

Ed Lane

quote:

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Originally posted by Ed Lane:
The person in this case successfully served out his probation.

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That's still a deal-breaker for an expunction under the new law, unless I'm missing something. But if it was a deferred adjudication, the person might be eligible for an order of non-disclosure.

Thank you, Shannon. You're doing a great job.

Ed Lane

I'm aware of M.M., and I can understand the question of whether 12.45ing is a "dismissal". But I'm not sure if that matters once the SOL has run, since the statute only requires that there wasn't a conviction or probation. Not many courts have looked at 12.45, and they seem to have decided it at cross ways.

Taken literally, an Expunction order would require a clerk to delete the 12.45 order from a judgment. Explain that one to the public.