The last few months have been exciting ones for your Austin Expunction Attorney.  The dust is starting to settle regarding what the new Texas expunction law means for Travis County citizens seeking expungement in Austin.  More on that later, but for now here is the synthesized version of the two bills that changed the expunction statute as of 9-1-2011.  This post covers only Art. 55.01 of the Code of Criminal Procedure, which deals with a person’s right to expunction – who is eligible, what the new timelines are, and a few new restrictions on eligibility for expungement.

A few points about the new timelines for expunction – 180 days for Class C misdemeanors, 1 year for Class A or B misdemeanors, 3 years for felonies.

1)  The new timelines for expungement that everyone has been buzzing about are of very limited utility.  First, the new timelines apply only to cases that have not been filed – that is, where there was an arrest, but no indictment or information filed formally charging an offense to be expunged.  This is rarely the case, unless either there was a mistake (which is covered in a separate area that was operable under the old law anyway), or a situation where, for whatever reason, the State dropped the ball and forgot to file the charges.  In the latter case, requesting an expunction before the statute of limitations runs is akin to poking the State with a sharp stick, saying “ha, ha, I’m entitled to an expunction now” and basically daring them to file charges they forgot to file in the first place.  Because the statute of limitations has not run, they can do that all day long and you shoot yourself in the foot.

2) Let’s say you get away with it – you request your early expunction and they don’t file the charges.  Unless you get the prosecutor to “certify” that the files are not needed, they can keep their records, and so can the “applicable law enforcement agency”, under 55.02 Sec. 4(a-1).  This could mean the arresting agency, but could also conceivably be any law enforcement agency named in the statute.  So, without that certification, what appears to be an expunction is not an expunction at all.  What’s worse, in order to make it a full expunction, you would have to wait until the statute of limitations runs and then petition for an additional expunction, which entails another round of court costs and filing fees.

3) Let’s say you wait out the new timeline, then get certification from the State.  Isn’t that a benefit of the new timelines?  Not really, considering 55.01(b)(2), a new provision that allows the prosecutor to recommend expungement at any time, regardless of any timeline or whether a case has been filed.

So in short, if you want to get an expungement without waiting until the statute of limitation runs, your best relief comes from the recommendation procedure in 55.01(b)(2), and not from the new timelines.  I don’t know when you would ever want to file for the “non-expunction expunction” you would get under the new timeline without certification.

At any rate, here is Art. 55.01 of the new Texas expunction law.

Texas Expunction Law as of September 1, 2011

Art. 55.01. Right to Expunction

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) ; or

(B) convicted and subsequently:

(i) pardoned for a reason other than that described by Subparagraph (ii); or

(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or

(2) 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 the offense, unless the offense is a Class C misdemeanor, provided that :

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest, and:

(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or

(d) the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information it was void; or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

(a-1) Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Section 21, Article 42.12.

(a-2) Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest.

(b) Except as provided by Subsection (c), a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:

(1) the person is:

(A) tried for the offense for which the person was arrested;

(B) convicted of the offense; and

(C) acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or

(2) an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.

(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

(d) A person is entitled to have any information that identifies the person, including the person’s name, address, date of birth, driver’s license number, and social security number, contained in records and files relating to the arrest of another person expunged if:

(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person’s identifying information without the consent of the person asserting the entitlement; and

(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person’s identifying information.

Liberals and those 18 to 29 most in favor; Americans 65 and older most opposed

Led by a mock cop car emblazoned with a marijuana leaf and topped with flashing green lights, students from UNT’s chapter of the National Organization for the Reform of Marijuana Laws marched Monday afternoon to promote awareness of marijuana laws and reform.

“Police officers sometimes stop us, but I think they are more curious than anything,” said David Sloan, public information officer for the DFW NORML chapter. “They know we are mocking them, but they are cool with it.”

A crowd flaunted signs and chanted slogans encouraging attendees and passersby to embrace the organization’s viewpoints on marijuana laws and culture.

During the spring semester, the organization worked with UNT’s Student Government Association to author a bill calling for consequences for residence hall drug violations to be equal to the much more lenient punishments for alcohol violations.

The bill – which would have presented the issue for an unofficial student opinion poll – was passed and then accidentally deleted before it could be brought to students.

However, the message wasn’t lost on administrators, who quietly amended the dorms’ alcohol and drug policy during the summer.

“The new policy allows students to have a fresh start and learn from their mistakes,” said Maureen McGuiness, UNT’s dean of students.

In the past, UNT had a zero-tolerance policy for students living in a dorm who were caught with any marijuana or marijuana paraphernalia. Offenders were immediately evicted and made to pay a $1,000 breach-of-contract fee.

Although the policy for drug possession remains the same, the university now distinguishes between drug possession and possession of paraphernalia, devices used to consume illegal. If a student is found with paraphernalia or seeds, he or she now avoids paying the fee and being evicted from the dorms altogether, and is instead transferred to a new hall and made to take a drug education class.

McGuinness said regardless of university rules or guidelines, marijuana is illegal in Texas, and UNT policy will continue to reflect that. She said the paraphernalia distinction was added after conversations with members of UNT NORML.

Nikki Kidd, president of the UNT NORML chapter, said UNT’s policy change is a start for what the organization hopes to achieve.

Chapter Vice President Alex Teuscher said he was subject to the old consequences when he was found with his friend’s marijuana grinder in his dorm room.

According to UNT’s Crime Security Awareness and Prevention report, there were 54 disciplinary referrals for drug-related violations in 2009. Statistics for 2010 will be released in October.

In addition to the changes in expunction law I wrote about last month here’s another consequence of the new expunction statute that will take effect September 1.  It has to do with dismissed Class C misdemeanors, which may now be eligible for expunction as soon as 180 days after the ticket was issued or the arrest was made.

Class C misdemeanors include traffic tickets, Minor in Possession of Alcohol (MIP), Minor in Consumption of Alcohol (MIC), possession of drug paraphernalia (PDP), Public Intoxication, Disorderly Conduct (DOC) and many other offenses that are punishable by fine only.

The new law provides that a person is entitled to expunction when an indictment or information has not been presented against the person, and “at least 180 days have  elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested.”

An indictment or information is never presented in a Class C misdemeanor case; Class C’s are charged by a complaint.  So as long as the case was dismissed, did not involve a felony, and 180 days have passed, the person is entitled to expunction.

Here’s the tricky part: when a person applies for expunction based on the new time limits, the new statue provides that the prosecutor and  “the applicable law enforcement agency”  (which could be the arresting agency, or any other law enforcement agency that has the files) may retain the arrest records if the prosecuting attorney does not certify that the files are no longer needed. Not only that, but the statute doesn’t say how long they may retain the records.  Presumably forever, unless the person gets an additional expunction after the statute of limitations runs. (Still 2 years on any misdemeanor).

So the good news is that if the dismissed Class C happened over 180 days ago and did not involve a felony, AND the prosecutor certifies that the records are no longer needed, the expunction will be granted.  But because an expunction done within that time frame will not be complete without the certification, it’s probably not a good idea.

Many thanks to the great minds in the Austin Criminal Defense Lawyer’s Association and others in the Travis County criminal defense bar who are working tirelessly to interpret this somewhat complicated new set of rules.

Check out this article in yesterday’s Austin American Statesman:

Travis lags in sending crime info to state database

The short version is that Texas counties are required by law to forward arrest and prosecution information to the Texas Criminal Justice Information System, which is run by the Department of Public Safety.  Travis County’s reporting of this criminal record information to DPS is much slower and less complete than most other Texas counties.

You might think that as an expunction/expungement attorney working out of Travis County, I would welcome the lack of reporting of criminal history to the state database.  You would be wrong.

First of all, all arrests in Austin/Travis County are assigned a tracking number (TRN).  DPS uses the TRN to track the person’s arrest history in their database, so virtually every arrest is being reported to DPS.  What is not being reported is the disposition of the case: whether it resulted in dismissal, deferred adjudication, probation, or jail time.

So let’s say you were arrested for possession of marijuana in Travis County and your case was dismissed.  You get a background check for a job, apartment, or professional license.  If your record has been thoroughly expunged, you can legally deny you were arrested, and the information will not show up on the DPS background check.  If not, your prospective employer, landlord or licensing board will see that you were arrested, but there is a good chance they will NOT see that your case was dismissed.  Most often the background check will say “Disposition: HELD”, which is exactly the same way it looks when a case is still pending.  Every employer and landlord is different, but I know from experience that many of them just move on to the next applicant, and you don’t get the call-back.

This applies to orders of nondisclosure in Travis County as well.   If you completed deferred adjudication successfully, your case was dismissed.  But what good does that do you if all your background check says is that you were arrested?

This article illustrates the importance of sealing or expunging your record, especially in Austin/Travis County, as soon as you are eligible.  If you don’t, who knows what the person looking at your background check will see (or perhaps worse, won’t see).

When it comes to possession of marijuana cases in Texas, there’s no place like Austin.  The red-headed stranger found out as much after he was busted in El Paso County at a border checkpoint with 6 ounces of weed.  The deal, which would have had him plead to a reduced charge of possession of drug paraphernalia and pay a $500 fine, was rejected by Judge Becky Dean-Walker, who suggested that Willie should not get any special treatment.

While this would have been a pretty sweet plea bargain, reducing a state jail felony to a Class C misdemeanor, I suspect it has less to do with Willie’s celebrity status than with his choice of attorneys – Austin’s own Joe Turner, who was my very first boss out of law school for a few months before I went to work for the Travis County Attorney’s Office.  Joe is the quintessential fighter, and the El Paso DA is going to have quite a handful if they force Willie to trial.  Go get ‘em Joe!

Read the article from the Washington Post here.

Good news and bad news, Austin/Travis County!  Texas expunction law is about to change.  Bills passed during the 82^nd Texas Legislature (for which I am proud to have testified) change several aspects of expunction law.  These changes will take effect on 9-1-2011.

The Good News

One change is the new eligibility for a person granted relief on the basis of actual innocence.  Up until now, a person who had been convicted but later pardoned could have his criminal record expunged, but a person who was convicted and later found to be actually innocent could not.

The new law also changes the timeline during which one becomes eligible for expunction if the charges are not filed within a certain amount of time.  Current law provides that a person who was arrested must wait to expunge until the statute of limitations for the offense expires (generally, 2 years for misdemeanors, 3 years for most felonies, longer for certain serious felonies.)  Under the new law, a person who is arrested but not formally charged with a misdemeanor offense may petition for expunction:

• 180 days after arrest for a Class C misdemeanor (traffic tickets, PI, MIP, punishable by fine only)
• 1 year after arrest for Class A & B misdemeanors
• 3 years from date of arrest for all felonies
• at any time after arrest if the attorney for the State certifies that the files are not needed for any subsequent criminal prosecution.

The Bad News

For cases that are formally filed by indictment or information but later dismissed, (the most common situation), the person must still wait until the statute of limitations expires to petition for expunction.

As of September 1^st, a person may no longer petition for expunction of records for an arrest that was made pursuant to a probation revocation warrant.  The new law also denies eligibility to expunge records to people who intentionally or knowingly abscond (“jump bail”) after being released on bond.

Another consequence of the new law is that a person will likely no longer be eligible to expunge misdemeanor cases that were disposed of under Section 12.45, Penal Code.  Courts have interpreted current law to allow expunction of 12.45 misdemeanors, but the new language of the statute makes that interpretation moot.

This illustrates the importance of having Texas criminal records expunged as soon as you are eligible.  Once expungement is granted, the records are destroyed forever.  But if you wait too long, the Legislature may enact changes that will make it so you are no longer eligible.

Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) 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, and:
(i) the limitations period expired before the date on which
a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was
dismissed or quashed because the presentment had been made because
of mistake, false information, or other similar reason indicating
absence of probable cause at the time of the dismissal to believe
the person committed the offense or because it was void;
(B) 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; and
(C) the person has not been convicted of a felony in the five
years preceding the date of the arrest.
(a-1) Notwithstanding Subsection (a)(2)(C), a person’s
conviction of a felony in the five years preceding the date of the
arrest does not affect the person’s entitlement to expunction for
purposes of an ex parte petition filed on behalf of the person by
the director of the Department of Public Safety under Section 2(e),
Article 55.02.
(b) Except as provided by Subsection (c) of this section, a
district court may expunge all records and files relating to the
arrest of a person who has been arrested for commission of a felony
or misdemeanor under the procedure established under Article 55.02
of this code if the person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
(c) A court may not order the expunction of records and
files relating to an arrest for an offense for which a person is
subsequently acquitted, whether by the trial court or the court of
criminal appeals, if the offense for which the person was acquitted
arose out of a criminal episode, as defined by Section 3.01, Penal
Code, and the person was convicted of or remains subject to
prosecution for at least one other offense occurring during the
criminal episode.
(d) A person is entitled to have any information that
identifies the person, including the person’s name, address, date
of birth, driver’s license number, and social security number,
contained in records and files relating to the arrest of another
person expunged if:
(1) the information identifying the person asserting the
entitlement to expunction was falsely given by the person arrested
as the arrested person’s identifying information without the
consent of the person asserting the entitlement; and
(2) the only reason for the information identifying the
person asserting the entitlement being contained in the arrest
records and files of the person arrested is that the information was
falsely given by the person arrested as the arrested person’s
identifying information.

From: http://law.onecle.com/texas/criminal-procedure/55.01.00.html