Understanding Expunctions & Nondisclosures Scott Brumley, Potter County Attorney (materials by Andrea L. Westerfeld, Assistant Criminal District Attorney, Collin County)

Tools of the Trade

Expunctions vs. Nondisclosures Allow wrongly arrested person to clear record Records destroyed

Expunctions vs. Nondisclosures “Second chance” after deferred or some convictions Records sealed

Expunctions

Expunctions Chapter 55 of Code of Criminal Procedure Civil proceeding Petitioner has burden May appeal as in civil cases Mandatory if petitioner meets requirements Each agency may respond separately

Four Categories Acquittals & pardons Dismissals & no-bills Discretionary expunctions Identity theft

Arrest Requirement Threshold requirement for expunction Custodial or noncustodial Juvenile records not eligible

Arrest Requirement Arrest for felony or misdemeanor Contempt of court Parole violation Revocation of community supervision

Arrest Requirement Multiple charges out of one arrest Travis County Dist. Atty. v. M.M., 354 S.W.3d 920 (Austin 2011) NOT changed by 2015 Legislative session

Acquittals & Pardons Entitled to expunction if acquitted or pardoned Includes acquittals on appeal Same criminal episode: Convicted of or remain subject to prosecution for

Actual Innocence Entitled to expunction if pardoned or granted relief on grounds of actual innocence Only difference in compliance: Agencies must return all records to District Clerk District Clerk retains until SOL runs on possible civil suit related to wrongful imprisonment

Dismissals & No-Bills Not pending Not convicted No community supervision except for Class C misdemeanors

Dismissals & No-Bills Three categories: Statute of limitations has run Waiting period has expired Dismissed for certain reasons

Statute of Limitations “Prosecution is no longer possible because the limitations period has expired” No other reasons Class C deferred State v. Beam, 226 S.W.3d 392 (Tex. 2007) Dismissal with prejudice Ex parte Reed, 343 S.W.3d 306 (Houston 14th 2011)

Waiting Period No indictment or information filed Waiting period expired Felony – 3 years Class A & B misdemeanor – 1 year Class C misdemeanor – 180 days OR prosecutor certifies records not needed Must include exception authorizing police & prosecutor to keep records (unless certified)

Reason for Dismissal Indictment or information presented, then dismissed or quashed Dismissed because: Void Pretrial intervention No probable cause

No Probable Cause 3 considerations: Mistake of fact, false information, or other similar reason Lack of PC to believe petitioner committed offense Reason for dismissal

No Probable Cause Insufficient evidence Unavailable, incompetent, or uncooperative victim Evidence suppressed Convicted in another case

No Probable Cause Victim recanted and no other evidence supports Evidence false or fabricated Wrong person mistakenly arrested and charged

Discretionary Expunctions May be granted any time before case goes to trial “The office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested” Discretionary by judge

Answering a Petition All respondents have independent right to answer petition General denial – Petitioner cannot rely on petition and must present evidence in support Hearing must be set at least 30 days after petition was filed to give all respondents notice

Special Exceptions Exceptions may be granted to allow police and prosecutor to retain records Acquittals Necessary for investigation & prosecution of person other than petitioner Other cases Necessary for investigation & prosecution for any other offense, criminal or civil

Compliance Notice sent by District Clerk when order is signed, certified copy of order when order is final Records of arrest expunged Investigation prior to arrest not affected Parallel investigations by CPS or employer not affected

Compliance Expunged records may not be released, disseminated, or used Only respondent agencies must comply Non-government agencies not affected Government agencies only if named or know of order Expunged records may not be released, disseminated, or used Class B misdemeanor Only records affected, not personal knowledge

A note about Non-Ch.55 Expunctions Some Class C misdemeanors can be expunged under CCP 45.0216 Convicted/deferred only 1 offense Before age 17 Specific age related offenses Alc. Bev. Code Ch. 106 Tobacco use by minor

Toy Story video

Identity Theft Allows expunction where another person used petitioner’s identifying information without consent Petitioner must submit application, fingerprints, and sworn statement he did not consent to use of information

Identity Theft Application filed in prosecutor’s office where petitioner resides, not where offense occurred Prosecutor files petition and order with court once convinced petitioner wasn’t person arrested Agencies comply by deleting petitioner’s identifying information from records, and replacing with arrested person’s information if known

Nondisclosures

Nondisclosures Section 411 of the Government Code Civil proceeding Petitioner has burden No general right to appeal Must request hearing within 45 days of notice or trial court may grant without hearing

Which law applies? New statue only applies to offenses committed after 9/1/15 Any offenses committed before 9/1/15 still use old nondisclosure rules!

Offenses Before 9/1/15 Successfully completed deferred adjudication Never convicted/deferred for Any offense requiring sex offender registration PC 19.02, 19.03, 20.04, 22.04, 22.041, 25.07, 25.072, 42.072 Any offense involving family violence Best interests of justice AND…

Offenses Before 9/1/15 Completed waiting period 5 years all felonies 2 years certain misdemeanors (PC Ch. 20, 21, 22, 25, 42, & 46) Immediate all other misdemeanors No convictions/deferred (other than fine-only traffic violations) during period of deferred and waiting period

Offenses After 9/1/15

Basic Requirements No other convictions/deferred from time sentence pronounced, including waiting period Never convicted/deferred for: Any offense requiring sex offender registration PC 19.02, 19.03, 20.04, 20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, 42.072 Any offense involving family violence AND

Must fit into one of five categories “Automatic” nondisclosures Deferred adjudication Misdemeanor community supervision Misdemeanor jailtime Human trafficking victims

“Automatic” Nondisclosures Deferred for misdemeanor other than PC Ch. 20, 21, 22, 25, 42, 43, 46, or 71 No 5(k) affirmative finding that not eligible No prior convictions/deferred (at any time) AND >180 days after placed on deferred

“Automatic” Nondisclosures Applicant not required to file petition or give notice to State But is required to provide to court any evidence necessary to establish eligibility (and pay fee)

Deferred Adjudication Placed on deferred for any felony or any misdemeanor not included in Automatic Nondisclosures Discharged & dismissed Best interests of justice AND

Deferred Adjudication Waiting period (from issuance of D&D): 5 years for all felonies 2 years for misdemeanors under PC Ch. 20, 21, 22, 25, 42, 43, & 46 Immediately for all other misdemeanors

Misdemeanor Community Supervision

Misdemeanor Community Supervision Convicted & placed on probation for any misdemeanor other than: Alc Bev Code § 106.041 PC §§ 49.04, 49.05, 49.06, 49.065, & Ch. 71 Successfully completed probation and received discharge & dismissal No previous conviction/deferred (other than fine-only traffic violation)

Misdemeanor Community Supervision Best interests of justice AND Waiting period (from issuance of D&D): 2 years for misdemeanors under PC §§ 20, 21, 22, 25, 42, 43, or 46 (mistake in handout) Immediately for all other misdemeanors

Misdemeanor Jailtime

Misdemeanor Jailtime Convicted & jailed for any misdemeanor other than: Alc Bev Code § 106 PC §§ 49.04, 49.05, 49.06, 49.065, & Ch. 71 Successfully released No prior conviction/deferred (other than fine-only traffic violation)

Misdemeanor Jailtime Best interests of justice Waiting period: AND Waiting period: 2 years from release from confinement

Human Trafficking Victims Convicted under PC 43.02 (prostitution) and given community supervision Conviction set aside under CCP art. 42.12, §20(a) Committed offense solely as victim of trafficking AND Best interests of justice

Compliance After court signs order, sent to DPS. DPS distributes to agencies. Agencies must seal not later than 30 business days after receiving DPS notice May disclose only to other criminal justice agencies, certain regulatory agencies, and petitioner

Compliance Information subject to nondisclosure may be admitted into evidence of “any subsequent offense” May be disclosed to prosecuting attorney for criminal justice purposes

Questions? Scott Brumley Potter County Attorney Amarillo, Texas (806) 379-2255 scottbrumley@mypottercounty.com