Since 2003, when Chapter 55 changed, how are you handling expunctions of the class C misdemeanors? I have heard of some counties using the SOL as a means to oppose an expunction, but I always thought the SOL argument was intended for felony expunction per (i). It doesn�t explicitly state that the SOL has to expire for the class C. Does anyone have any recommended approaches when dealing with petitions to expunge class C deferred adjudications? If the petitioner is eligible per 55, what is your approach?

Tiffany

If the petitioner is eligible, I don't oppose it. But most of the Class C expunctions I see were obtained ex parte without prior notice. I am referring to the ability to get a minor in possession case expunged when Defendant turns 21, even if he was convicted. In that case, the first thing I see is the expunction order issued by the JP.

In one case the defendant had been prosecuted for a Class C violation of a Parks and Wildlife rule that prohibits the public display of alcobev in a state park. The JP had already signed the expunction order, mistakenly thinking the case was an alcobev code violation. It turned out that the defendant had received deferred adjudication for the offense, so I advised my agency to comply with the order. Since the defendant was eligible under Ch. 55, it didn't seem worthwhile to fight over it.

I never oppose them. It is just a Class C misdemeanor and not worth the time and effort to do so.

The wording in Art. 55.01(a)(2)(B) seems to indicate the Legislature's intent (albeit badly worded and subject to interpretation) that all Class C Misdemeanors may be expunged regardless of disposition.

We oppose all misdemeanor expunctions (even Class C's) filed within the limitations period, based on State v. Bhat, 127 S.W.3d 435 (Tex. App. -- Dallas 2004.) We currently have two misdemeanor expunction cases on appeal in Amarillo on that basis. In both cases, the underlying charge was plead out as a Class C Misdemeanor. Article 55.01(a)(2) clearly states that "each of the following conditions exist." Article 55.01(a)(2)(A) is satsified for both felonies and misdemeanors, even though the language in that section refers only to felonies. Our position is that because an expunctuion requires both the Court and the prosecutor to destroy all records pertaining to an arrest, we need to keep even a misdemeanor conviction on the books at least until limitations has expired to avoid granting lenient treatment for subsequent offenses. If you allow an expunction after a case has been plead down to a Class C, how will you know (officially) not to do that again when the person is subsequently arrested?

The only exception to this policy is Class C TABC cases (e.g. - MIP's) which do not come under Art. 55 anyway.

Don't let the camel gets its nose under your tent. Even if you keep the rest of the camel out, they have bad breath and sometimes they sneeze.

To be eligible for an expunction other than an acquittal, a party has to meet each of the conditions in section 2. That means (A) felony dismissal due to lack of probable cause or statute of limitations runs, (B) no final conviction or court ordered probation, and (C) not convicted of a felony in the five years preceeding the arrest. The only part affected by the Class C amendment was (B) -- receiving probation for a Class C misdemeanor doesn't count as court ordered probation. Therefore, a defendant who successfully completed deferred on a Class C is eligible under (B). But he also has to be eligible under (A) and (C)! For a misdemeanor, that means the statute of limitations has to have run. I don't see any other way the amendment affected that section.

I always require the SOL to have run before approving a Class C deferred expunction. Because it's only two years, it's rarely an issue and only one defendant has ever argued with me about it. He took it to the judge, arguing that since we couldn't actually try the case again there was no point in not letting it be expunged. I cited State v. Bhat and pointed out that the Legislature was free to amend (A) at the same time they amended (B), but they decided not to. The judge agreed with me and denied the expunction.

Has anyone had a similar case decided differently?

[This message was edited by Andrea Westerfeld on 04-21-06 at .]

I fully understand the SOL argument as it applies to felonies, but I still wonder if it applies to the deferred class C misdemeanors.

From reading it, 2A makes no mention, implied or direct, of misdemeanors whatsoever. 2A discusses only felonies. (i) and (ii) fall directly under 2A, which speaks only of indictment or information charging the person with commission of a FELONY. As I read it, (i) and (ii) are not independent. They are subsections of, and dependent upon, 2A.

The Bhat case, from my understanding, was an unusual petition for expunction. No charges had been filed against appellee at the time of the hearing, meaning there couldn�t possibly have been a deferred class C imposed. Thus, the SOL would understandably have to expire, in that case 2 years.

Why couldn�t the legislature clarify this!

Tiffany

If you are convicted of a misdemeanor, by definition, "...an indictment or information charging the person with commission of a felony has not been presented against the person for
an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person
with commission of a felony was presented, the indictment or information has been dismissed or quashed." Thus, for all misdemeanors, 55.01(a)(2)(A) is satisfied, leaving only satisfaction of sub-sections (i) and (ii). Expunction relates back to the arrest...not the ultimate conviction. The person could have been arrested for what the officer thought would be a felony, only to have the charge end up as a misdemenaor. Since expunction is a remedy relating to the arrest, not the ultimate charge or conviction, there is no reason not to require limitations to run on both misdemenor and felony arrests before being eligible for expunction.

There is an argument (most recently adanced in the article by Houston criminal defense attorney Fred Dahr in the March, 2006 issue of the Texas Bar Journal, where he interprets that sub-sections (i) and (ii) apply only to that part of (2)(A) coming after the word "or," for those cases where, "...an indictment or information charging the person with commission of a felony was presented..." If the legislature had intended the statute to be read that way, they could have broken (2)(A) into two discrete sections, at the word "or," and placed (i) and (ii) with the second section.

As for Bhat being an unusual fact pattern, the Dallas Court of Appeals has issued several (mostly memorandum) opinions, in which they apply the same reasoning to many different situations. See:

State v. L.T., 2004 Tex. App. LEXIS 11610 (Def arrested for assault F/V; no record as to the disposition of the arrest; HELD: no expunction until SOL expires.)

Collin County CDA v. Russell, 2005 Tex. App. LEXIS 105 (Def arrested for Class C Misd assault; Complaint dismissed; Expunction filed w/i SOL; HELD: no expunction until SOL expires.)

Collin County CDA v. Winger-Bearskin, 2006 Tex. App. LEXIS 1725 (Def arrested for F/V Assault; case refused by CDA; HELD: no expunction until SOL expires.)

Collin County CDA v. Dobson, 167 S.W.3d 625 (Tex. App. -- Dallas 2005) (Def arrested for misd assaultCharge refused by CDA; HELD: no expunction until SOL expires.)

Dallas County DA v. Hoogerwerf, 2005 Tex. App. LEXIS 10424 (Def arrested for sexual assault (Felony w/ 10 yr SOL); 2+ yrs after arrest, DA had not filed charges; Def sought expunction; DA opposed on the grounds that it was an open investigation and SOL had not expired; Ct. granted expunction; HELD: 55.01 (A), (B) and (C) are conjunctive and all must be satisfied; no expunction until SOL expires.)

What we need is some authority from somewhere other than Dallas.

quote:

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Why couldn't the legislature clarify this!

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Be careful what you wish for, Tiffany. Every proposed legislative amendment to expunction law over the last 5 years has sought to expand expunctions. Some have passed, others have not.

That said, if you are still interested in pursuing a change, please call or email me to get the ball rolling.

I agree with John! Section A requires EITHER (i) a felony indictment has been presented and dismissed for lack of probable cause, OR (ii) the statute of limitations has run. Period. So if you have a felony case that was no-billed, a felony case dismissed for a reason other than a lack of probable cause, or any misdemeanor case, the SOL must have run before A is satisfied.

I agree that the fact situation is a little odd when you're talking about Class C deferreds, because SOL doesn't really apply when we can't proceed with the case anyway. That was the situation I had that I talked about in an earlier post. But the plain language of the statute is pretty clear about requiring the SOL to have run, and as John said, Dallas at least has been consistent in upholding that requirement. If the Legislature wants Class C deferreds to be eligible for expunction immediately, they need to add that language to the statute.