Ever since the decision in State v. Bhat, 127 S.W.3d 435 (Tex. App. - Dallas 2004), we have opposed misdemeanor expunctions where the statute of limitations has not expired. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(i). Over and over, we hear from defense attorneys: (1) that was not the legislative intent; and (2) "that's not how they do it in ______ County." Are Lubbock and (I guess) Dallas Counties the only places to interpret the expunction statute this way? (e.g. - no expunction until the statute of limitations has expired.)

I used to handle Potter County's misd expuncs and I used Bhat a couple of times. You're not alone!

If I had a dime for every time some huckster tried to buffalo me with the old "every other county in Texas does it my way" line, ... I'd ... uh ... have a lot of dimes. My general response (with no disrespect meant to my colleagues, since I don't believe the underlying premise, anyway) is, "well, I guess every other county in Texas is doing it wrong."

That's how we handle it in Collin County. I think the statute is very clear -- if there's no indictment or information charging with a felony presented, then the statute of limitations has to run before the petitioner is entitled to an expunction. Nothing in there about misdemeanors being exempt from that section.

A related question I had spring up recently -- how is it handled now that those who plead guilty and receive deferred on a Class C misdemeanor are no longer disqualified under section B (requiring no court-ordered supervision)? I had a defense attorney arguing that he was entitled to an expunction because the State could no longer proceed on the charges, but yet the statute of limitations hadn't run. Anyone had that come up?

DPS has an attorney over in Crime Records Bureau that do nothing but work on expunction trials and appeals. They know the case law on expunctions very, very well. If you need help, give Frank Davis a call. I believe he is legally known as "John" Davis, but goes by Frank. The number is 512-424-2000 (main number).

Janette Ansolabehere

The best practice:

Make it a condition of any disposition that defendant waive any right to expunction.