Under 55.01(a)(2)(A)(ii)(a),(b), and (c), uncharged offenses may now be expunged before the limitations period runs. If this happens, 55.02 sec. 4(a-1) provides that the court "shall" provide in the order that law enforcement and the prosecution get to keep their records and files, so long as the prosecution has not agreed to the expunction.

But 55.02 sec. 4(b) says that 55.03 (D may deny occurrence of arrest) and 55.04(criminal liability for violating expunction order) apply to these retained records. 55.04 makes it a Class B misdemeanor to knowingly release, disseminate, or "otherwise use" the records and files.

If the DA seeks to indict for sexual assault during the ten-year limitations period, and one of these "retention" orders is in effect, will the DA not subject herself to criminal liability for using its records in its grand-jury presentation? What's the point of keeping the records if they cannot be used? Wouldn't this prohibition on use in the early-expunction/retention context violate the separation-of-powers doctrine?

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Originally posted by Giselle:
What's the point of keeping the records if they cannot be used?

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I think they can be used; see Art. 55.02, Sec. 4(b), as amended, which limits 55.03 & 55.04's prohibitions for those cases.

I finally had a chance to go back and look at the statute in light of M.M. in a bit more detail. (We were moving offices and things have been more than a little chaotic!) The new language of the statute does render M.M. inapplicable in most cases. The statute doesn't require the case be "dismissed" for a straight SOL expunction. It merely requires that the person's been released, the charge isn't pending and hasn't resulted in a final conviction or probation, and the limitations period has expired. That's under 55.01(a)(2)(B).

A case dismissed under 12.45 would still be ineligible under the new waiting period section (which requires that no indictment or information has been presented) and the old dismissal due to absence of probable cause (because a 12.45 isn't a "dismissal").

Hope this helps!

If M.M. holds that a 12.45 is not a dismissal, then I wonder when the limitations period would run on a charged offense that was taken into account under section 12.45.

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Originally posted by AndreaW:
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.

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How about this one? We had a complete mess in county court recently- our office discovered some unknown Brady material in the middle of trial (turns out the defendant gave the VERY LAST breath test on our instrument mere days before the intoxilizer permanently and unrepairably died, in a case where that was the breath test was the only real bright spot). I ended up dismissing the case in the middle of trial.

Now, of course, the defense attorney wants an expunction. Because of how all of this developed, I'm not opposed, but I'm not sure how we could even proceed.

55.01(a)(1)(A) is applicable when the person is acquitted by the trial court, which didn't happen here. The case was dismissed mid-testimony. (b)(2) is the discretionary statute, but limited to "before the person is tried for the offense." We had a jury sworn and testimony had started.

So what's the answer? The case was after trial started, but before a judgement of conviction. The defense attorney drafted an expunction order under (a)(1)(A), I think it should be under (b)(2). Or has the legislature accidentally created a situation where you cannot be eligible for an expunction?

He's not ineligible for an expunction, he just may not be able to get one immediately. He could get an immediate expunction under (a)(2)(A)(ii) if you agree that the reason for the dismissal was because of mistake, false information, or other information indicating an absence of probable cause to believe he committed the offense. I don't know if that will quite apply -- is your BT information so bad that it actually indicates no PC to believe he was DWI?

If not, then he'd have to go under (a)(2)(B), waiting until the statute of limitations expires.

However, he's definitely NOT eligible under (a)(1)(A) like the defense attorney says -- he was not acquitted by the trial court, the case was dismissed. And he's not eligible under either discretionary expunction, because there was an information filed and the case did proceed to trial.

Def caught two felonies.
He took a deal to dismiss the two felonies if he pled to an ACBI. The ACBI was a new case filed because of the dismissed felonies.

He's not serving a deferred on the cases he was indicted on. He's serving a deferred on the new case he pled to as the result of the plea bargain.

Question--does he get an expunction on the the dismissed felonies?

If so, must he wait out the SOL?

We've two minds and there's not been enough caffeine consumed. So a quick answer would be helpful.

Thanks!

I do not think he would be eligible for expunction. 55.01(c) bars the expunction of acquitted offenses that arose out of a criminal episode that the person remains subject to prosecution for or was convicted of at least one other offense occurring during the criminal episode.

Seems to fit your scenario.

I was also thinking he wouldn't qualify because he can't show he wasn't convicted of anything other than a class C. Meaning, we can change the charge and move it around, but unless it's a class C, he doesn't qualify for an expunction.

John, 55.01(c) wouldn't be applicable in this situation because it only applies to acquittals. The felonies in this case were dismissed. I would still say they're not eligible to be expunged, though, because the defendant is serving probation out of the arrest. The expunction statute is concerned with the arrest, not the charge, and any later plea or charge bargaining doesn't affect that original arrest. Since the felonies were dismissed in exchange for the new misdemeanor, that's charge bargaining. He's still still serving probation out of the arrest, and so he can't have the dismissals expunged.

Even if the new charge doesn't bar the expunctions at all, the defendant would still have to wait out the SOL. He can only skip that if it was dismissed for mistake/false information indicating absence of probable cause -- not applicable because he pled to the connected case -- or if he served out a pretrial diversion. The new waiting period expunctions won't apply either, since an indictment was filed against him and then dismissed.

Incidentally, the Austin court of appeals seems inclined to extend this to any charges arising out of the arrest. I've always limited it to plea/charge bargaining cases -- if they arrest you for felony assault and you ultimately plea to misdemeanor assault, you can't get the felony expunged. But Austin in In re M.M. seems to say that if there was any conviction/probation out of the arrest, all cases are barred expunction. So if you were arrested for assault and drug possession, assault dismissed and pled to possession, neither one could be expunged based on the one conviction. That's a departure from how other courts have handled it in the past, so I'm intrigued to see if that catches on.

Is this charge bargaining and thus, doesn't get an expunction, when a juvenile gets arrested on a DWI, but pleads to a class C DUI of alcohol while a minor?

I suppose we're asking if def is arrested on anything, but pleads to a c, does he get an expunction?

We've operated under the belief that anything but a c = no expunction because the statute says:
"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."

But are we reading that right?