So, there is a defense attorney who wants to file an expunction for his client who received deferred adjudication on an Indecency w/ Child and Improper Relationship b/w educator and student charges. Client was a permanent resident and was deported as a result. He re-entered and was taken into federal custody where he appealed his state charges under Padilla and prevailed. The court of appeals vacated the conviction. The DA's Office choose not to prosecute the case again because the victim no longer wanted to pursue the case. The final judgement says that the state dismissed in the interest of justice.

Can the defense be successful in this expunction even though there is no statute of limitations on the Indecency w/ a Child charge? Thanks.

Short answer: Maybe, but most likely not.

On a dismissal, he'd have to show either that the statute of limitations has expired (which it can't for Indecency) or meet the lack of probable cause exception, which I don't think he'll be able to.

The lack of PC exception applies if the case was dismissed because there was a mistake of fact, false information, or other similar reason indicating an absence of probable cause to indict. So basically it should be some kind of false information that, if we'd known it from the beginning, there never would've been PC to indict.

The appellate reversal doesn't show anything for that exception, since it was a Padilla case and not anything about PC to indict. You'd have your prosecutor testify that they dismissed because the victim didn't want to go through another trial and they never received any kind of additional information that case doubt on the PC of the case.

The judge isn't bound by solely the DA's statement for why it was dismissed, so the defense attorney could put on evidence trying to prove up another reason. Just remember that (1) it has to be a mistake, false information, or something along those lines, not just someone had a different way to interpret things, and (2) the mistake etc had to take away the probable cause to INDICT. It's not enough to say we wouldn't have won at trial, like evidence was suppressed or a witness wouldn't testify. It's just probable cause.

If you have any other questions on this, feel free to email me!

Make sure that you look at the expunction law after recent changes (2011, 2013 and 2015). The requirement that the statute of limitations has run is no longer required. Instead you are dealing with other factors such as a three year waiting period for felonies, that no investigation or prosecution is forthcoming and some others that I can't remember off the top of my head.

I see Andrea has responded already--I linked to her articles below:

2011 Article


2015 Article

No, the statute of limitations rule is still in effect. See CCP art. 55.01(a)(2)(B). The waiting period rule under 55.01(a)(2)(A)(i) is only applicable if no indictment or information has been filed. There was an indictment filed in this case, so the only options are SOL or the lack of PC exception under 55.01(a)(2)(A)(ii).

Basically it's three independent ways to get an expunction under 55.01(a)(2) -- waiting period, lack of PC/diversion program, or SOL. You can meet the requirements of any one of the three and get an expunction.