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

2. Tools of the Trade

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

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

5. Expunctions

6. 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

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

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

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

10. 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

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

12. 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

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

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

15. 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)

16. 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)

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

18. 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

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

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

21. 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

22. 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

23. 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

24. 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

25. 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

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

27. Toy Story video

28. 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

29. 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

30. Nondisclosures

31. 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

32. 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!

33. 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, , 25.07, ,
Any offense involving family violence
Best interests of justice
AND…

34. 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

35. Offenses After 9/1/15

36. 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, , 25.07, ,
Any offense involving family violence
AND

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

38. “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

39. “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)

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

41. 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

42. Misdemeanor Community Supervision

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

44. 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

45. Misdemeanor Jailtime

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

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

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

49. 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

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

51. Questions? Scott Brumley Potter County Attorney Amarillo, Texas
(806)