More on Texas expunction law changes effective 9-1-2011
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.