1. Expunctions & Nondisclosures April 1, 2016 Williamson County Bar Association Continuing Legal Education

2. Expunctions vs. Nondisclosures Expunctions Allow wrongly arrested person to clear record Records returned and/or destroyed

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

4. Expunctions Chapter 55 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

5. Expunction Categories 1.Acquittals & pardons 2.Dismissals & no-bills 3.Discretionary expunctions 4.Identify theft

6. Arrest Requirement Threshold requirement for expunction Custodial or noncustodial Juvenile records NOT eligible (sealing) unless class c offense

7. Arrest Requirement Arrest for felony or misdemeanor NOT Contempt of Court Parole Violation Revocation of community supervision

8. Arrest Requirement Multiple charges out of one arrest prevents expunction Travis County Dist. Atty. V. M.M., 354 S.W.3d 920 (Austin 2011) Final conviction on changed or reduced charge prevents expunction TDPS v G. B. E. No. 03-13-00017-CV, Court of Appeals of Texas, Third District, Austin, 2014 Tex. App. LEXIS 3195 NOT changed by 2015 Legislative Session

9. Acquittals & Pardons Entitled to expunction if acquitted or pardoned Includes acquittals on appeal Same criminal episode If convicted of or remain subject to prosecution then no expunction

10. 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 (not destroy) District Clerk retains until SOL runs on possible civil suit related to wrongful imprisonment

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

12. Dismissals & No-Bills 3 categories Statute of limitations has run Waiting period has expired Dismissed for certain reasons

13. 1. Statute of Limitations Prosecution no longer possible because limitations period has expired Tex. Code Crim. Proc. Art. 55.01 (a)(2)(B) Limitations periods found in Articles 12.01 (felonies) and 12.02 (misdemeanors) Code of Criminal Procedure Do not count the day on which the offense was committed and the day on which the indictment or information is presented when computing the SOL. Tex Code Crim. Proc. Art. 12.04 And remember to toll the time during the pendency of an indictment, information, or complaint. Tex Code Crim. Proc. Art. 12.05

14. 2. Waiting Period No indictment or information filed Waiting period expired Felony – 3 years Class A & B misdemeanors – 1 year Class C misdemeanor – 180 days or prosecutor certifies records no longer needed Must include exception language authorizing police & prosecutor to keep records (unless certified by prosecutor)

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

16. No Probable Cause Considerations 1.Mistake of fact, false information, or other similar reason 2.Lack of PC to believe petitioner committed offense 3.Reason for dismissal

17. No Probable Cause YES WE HAVE NO PROBABLE CAUSE Recantation AND no other evidence to support charge False or fabricated evidence Mistakenly arrested and charged wrong person Please may I have an expunction? Why yes, yes you may.

18. No Probable Cause NO, WE DON’T HAVE NO PROBABLE CAUSE Not enough evidence to convict Victim problems: out of subpoena range, incompetent, uncooperative Suppression hearing: GRANTED GUILTY in other, but same, criminal episode, case Please may I have an expunction? No you may not.

19. Discretionary Expunctions MAY be granted IF before trial AND Prosecutor recommends expunction to the Court Is discretionary by Judge

20. Compliance What is NOT expunged? Investigation prior to arrest Other entity investigations/findings Employers CPS Memories Personal knowledge is not affected

21. Compliance Who must expunge? Governmental agencies if named as respondent agency or know of order Non-governmental agencies not affected

22. Identity Theft “Younger” twin brother steals driver license of “older” twin brother and uses when arrested without consent File through DAO in county where older twin (petitioner) resides Give sworn statement and fingerprints to ADA ADA files the petition and order when convinced younger twin actually arrested Agencies replace identity information with younger twin’s information

23. Nondisclosures Government Code Section 411.081 and NEW 411.071-077 Petitioner has burden and no general right to appeal NEW!Respondent opposing must request hearing within 45 days of notice or court may grant without hearing

24. Order of Nondisclosure Prohibits disclosure of criminal history record information Information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal charges and their dispositions Not included in definition: fingerprint records records relating to driver license application

25. Exempt from Nondisclosure Categories of criminal history record information exempt from nondisclosure: Posters, announcements, or lists identifying or apprehending fugitives or wanted persons Original records of entry, including police blotters Public judicial, administrative, or legislative proceedings Court records of public judicial proceedings Published judicial or administrative opinions Announcements of executive clemency

26. Disclosure of Nondisclosures Court or criminal justice agency can disclose to another criminal justice agency for criminal justice or regulatory licensing purposes May disclose to petitioner And to a very long list of non-criminal justice agencies and entities

27. Disclosure of Nondisclosures NEW! Statute made clear that the Order does not bar admission of evidence during trial of any subsequent offense Tex Gov’t Code 411.0775(1) May be disclosed to prosecuting attorney Statute does not authorize disclosure to criminal defense attorney But what about Michael Morton Act??? Example: prosecution witness has nondisclosed case may prosecutor disclose for possible impeachment purposes?

28. When for New Nondisclosure? 411.071-077 New statutes only apply to offenses committed on or after the effective date of September 1, 2015 411.081 applies to offenses committed prior to September 1, 2015

29. New Adventures of Old Christine 5+ Basic Requirements for Nondisclosure 1. successfully completed deferred adjudication 2. discharge and dismissal filed 3. applicable waiting period passed 4. not convicted of or placed on deferred adjudication for any offense during period of supervision and applicable waiting period (other than fine only Transportation Code offenses) and

30. New Adventures of Old Christine 5.was not placed on deferred adjudication for and has NEVER been convicted or placed on deferred adjudication for: Tex Gov’t Code 411.081 (e) Next Slide Please...

31. New Adventures of Old Christine offense requiring sex offender registration aggravated kidnapping murder capital murder injury to child, elderly, or disabled abandoning or endangering child violation of protective order repeated violation of bond conditions in family violence case stalking any offense involving family violence (does not require affirmative finding)

32. New Adventures of Old Christine And the 6 th of the 5 Basic Requirements is: Petitioner must still show the Court that issuing the order in the best interest of justice

33. New Adventures of Old Christine Waiting Periods after Discharge and Dismissal Date 5 years all felonies 2 years certain misdemeanors (PC Ch. 20, 21, 22, 23, 42, & 46) Immediate all other misdemeanors

34. NEW ADVENTURES OF NEW CHRISTINE OR NONDISCLOSURE FOR OFFENSES COMMITTED ON OR AFTER SEPTEMBER 1, 2015 411.071-077 Texas Government Code

35. Back to Basics Two base requirements: 1.person was not convicted of or placed on deferred adjudication for any offense other than fine-only traffic violations from time sentenced until sentence is complete and any waiting period has run

36. Back to Basics 2. Person must not have been convicted of or placed on deferred adjudication for certain offenses Same offenses as in 411.081(e) PLUS Human trafficking and continuous human trafficking AND Don’t forget any offense involving family violence This applies to both the offense petitioner attempting to nondisclose and any prior offense

37. The Five O of Nondisclosures 1.Automatic nondisclosure of certain misdemeanor deferreds 2.All other deferred adjudications 3.Following misdemeanor community supervision 4.Following misdemeanor jail time 5.Human trafficking victims Each of the 5 categories have specific requirements

38. “Automatic” Nondisclosures Certain Nonviolent Misdemeanors Five Requirements 1.NEVER EVER NOT NEVER previously convicted or placed on deferred adjudication for any offense other than fine-only traffic violation 2.CANNOT be misdemeanor found in Penal Code Chapters: 20, 21, 22, 25, 42, 43, 46, 71

39. “Automatic” Nondisclosures Certain Nonviolent Misdemeanors 3.Successfully completed deferred adjudication & received discharge and dismissal 4.At least 180 days since placed on deferred AND…

40. “Automatic” Nondisclosures Certain Nonviolent Misdemeanors 5.AFFIRMATIVE FINDING NOT in best interest of justice to receive automatic nondisclosure must be made when placed on deferred to disqualify from automatic nondisclosure CCP Article 42.12 section 5(k)

41. “Automatic” Nondisclosures No petition required No notice to the State required Person required to provide any evidence necessary to establish eligibility to Court and pay fee $28 ?????

42. Deferred Adjudication Felonies and Other Misdemeanors Like the old nondisclosure Completed deferred for any felony or misdemeanor not covered in automatic nondisclosure Must have discharge and dismissal And show is in best interest of justice Waiting periods apply

43. Deferred Adjudication Felonies and Other Misdemeanors Waiting period is calculated from date of the discharge/dismissal 5 years for all felonies 2 years for misdemeanors in Penal Code Chapters 20, 21, 22, 25, 42, 43, & 46 Immediate for all other misdemeanors

44. Misdemeanor Convictions: Community Supervision Convicted of offense Placed on probation Other than: Alcohol Beverage Code Section 106.041 PC Sections 49.04, 49.05, 49.06, 49.065, & Ch. 71 Successful completion with discharge/dismissal NO PREVIOUS CONVICTION/DEFERRED other than fine only traffic and

45. Misdemeanor Convictions: Community Supervision Best interest of justice Waiting period complete Starts at issuance of discharge/dismissal 2 years for misdemeanors under Penal Code Chapters 20, 21, 22, 25, 42, 43, and 46 Immediately for all other misdemeanors

46. Misdemeanor Convictions: Jail Time Convicted and jailed for misdemeanors other than A&BC Section 106.041 and PC Sections 49.04, 49.05, 49.06, 49.065, & Ch. 71 Released from jail NO PREVIOUS CONVICTION/DEFERRED other than fine only traffic offenses

47. Misdemeanor Convictions: Jail Time Best interest of justice Waiting period complete 2 years from release from confinement

48. Misdemeanor Convictions Human Trafficking Victims Convicted for prostitution PC 43.02 Placed on community supervision Successfully complete probation Conviction set aside under “judicial clemency” act Article 42.12 Section 20(a) of Code of Criminal Procedure Convince Judge committed offense solely as victim of human trafficking Best Interest of Justice

49. Then What? Statute places specific obligations on: The court clerk DPS Government agencies Private entities that purchase criminal history information

50. Court Clerk Obligations Within 15 business days after order issued: Must send copy of order to Crime Records Service of DPS Clerk has option of how information is sent Must seal clerk’s records as soon as practicable after sending order to DPS May not disclose information about case other than to criminal justice entities, an exempted agency, or petitioner

51. DPS Obligations Within 10 business days of receiving the order from court clerk: Must seal criminal history record information Must send order or information to state officials and entities, federal depositories of criminal records, and private entities listed in the statute

52. State Agency Obligations Within 30 business days of receiving order from DPS Must seal any criminal history record information it maintains that is subject of the order

53. Private Entities Obligations Private entities that compile and disseminate criminal history record information for money must: Once it receives notice of a nondisclosure order destroy and not disseminate any information in its possession that is subject to the order

54. EXPUNCTION & NONDISCLOSURE 2016 Edition By Andrea Westerfeld Published by Texas District & County Attorneys Association Available at TDCAA.com

55. Local Contacts ACA Tina Graves 512-943-1130 M-Z ACA Michael Cox 512-943-1133 A-L