Erasing Criminal Records After Dismissal, Acquittal, Pardon or False Identification
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Criminal Defense Lawyers often get call from potential clients wanting their criminal records expunged/destroyed. However, the expunction statute in Texas is very specific and applies only to records of arrest when a case against a defendant is dismissed with no probation, no billed by a grand jury, acquitted by the trial court or the court of criminal appeals or the result of identity theft.
Individuals who cases were dismissed after successfully completing a deferred adjudication are not entitled to an expunction. However, they may have there criminal records hidden from public view if the criminal court issues an order of nondisclosure after the applicable waiting periods have expired. A order of nondisclosure prevents release of the information to the public but does not prevent disclosure to law enforcement and other state agencies. Orders of Nondisclosure are governed by Texas Government Code Sec. 411.081.
Expunctions:
Texas Code of Criminal Procedure Art. 55.01 provides:
(a) A person who has been placed under … 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, …; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exists:
(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. …
(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 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.
Expunction proceedings under § 55.01(a) are civil rather than criminal in nature which places the burden on the petitioner to satisfy the strict conditions set forth in § 55.01. The courts do not have equitable power to expunge criminal records. See: Pitts v. State, 113 S.W.3d 393, 395-96 (Tex.App.-Houston [1st Dist.], 2003). An individual seeking expunction cannot obtain relief unless all the conditions set forth in § 55.01 are met. See: Harris County Dist. Att’y v. Lacafia, 965 S.W.2d 568, 569 (Tex.App.-Houston [14th Dist.] 1997, no pet.).
§ 55.01 is not a liberal statute offering sweeping relief. Expunction of a criminal record is neither a constitutional or common-law right but rather a narrow statutory privilege. See: McCarroll v. Tex. Dep’t of Pub. Safety, 86 S.W.3d 376, 378 (Tex.App.-Fort Worth 2002, no pet.). The district court hearing a petition for expunction must strictly comply with all the requirements of § 55.01. See: Harris County Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796, 798 (Tex.App.-Houston [14th Dist.] 1993, no writ).
For example, a petitioner, who had received a deferred adjudication following a guilty plea to simple assault, filed a verified petition for expunction of all criminal records pursuant to §§ 55.01(a)(2) and 45.051(e), Texas Code of Criminal Procedure. The State filed a general denial. The petitioner did not present any evidence that he had not been convicted in the five years preceding his arrest. The district court found that under Tex.R.Civ.P. 92 the general denial by the State put the question of convictions at issue, and since the petitioner had not proved he met the statutory conditions, he was not entitled to expunction. See: State v. Herron, 53 S.W.3d 843, 847 (Tex.App.-Fort Worth 2001).
Since § 55.01 proceedings are not exceptional cases, the district court is not required to appoint counsel for indigent petitioner trying to work his/her way through these thorny statutory requirements. See: Pitts v. State, supra., 113 S.W.3d at 395. And the issues in these proceedings can get complicated very quickly. For example, a petitioner sought to have a murder charge expunged from his record because he had been acquitted of the charge, but since he had been convicted of a burglary that arose out of the same criminal episode as the murder charge, the district court ruled he was not entitled to an expunction of the murder charge. See: Ex parte Baldivia, 2007 Tex.App. LEXIS 142 (Tex.App.-Amarillo Jan. 10, 2007). See also: Wilkomirski v. Texas Criminal Info. Ctr., 845 S.W.2d 424 (Tex.App.-Houston [1st Dist.] 1992) [defendant not entitled to expunction of arrest record because he received an instructed verdict of not guilty].
More recently, the appeals court in Texas Department of Public Safety v. J.H.J., 2008 Tex.App. LEXIS 8625 (Tex.App-Houston [14th Dist.] Nov. 13, 2008) narrowed the scope of relief under § 55.01 for two reasons: 1) the litigant J.H.J did not meet the statutory expunction requirements, and 2) the trial court did not have the equitable power to extend the protection of § 55.01. Id.
The facts of J.H.J. were set forth as follows by the appeals court: On March 31, 2000 J.H.J. entered a dual plea of not guilty/nolo contendere to a charge of Class B misdemeanor theft. The trial judge deferred an adjudication of guilt and placed J.H.J. on probation for six months pursuant to Tex. Code Crim. Proc. § 42.12(5). Upon completion of the six-month probation by J.H.J., the trial judge discharged him from the probation order and dismissed the prosecution against him. Id.
J.H.J. moved forward with his life. Although he graduated from college, he nonetheless encountered problems securing employment because of the theft arrest record. In May 2004, J.H.J. filed a petition for expunction in civil court asking that his theft arrest record be expunged. While this civil proceeding was pending, J.H.J. requested and obtained the following nunc pro tunc order from the criminal trial court
On this the 10th day of August, 2000, came to be heard the defendant’s Motion for Discharge From Probation And Dismissal of Cause, and it appears to the Court that this motion should be granted.
IT IS THEREFORE ORDERED that said period be declared to have terminated and the defendant discharged from probation, that the defendant is permitted to withdraw his plea, that this prosecution be dismissed, and that the defendant is released from all penalties and disabilities resulting from the offense.
J.H.J provided the civil court with the criminal court’s nunc pro tunc order and the civil court granted his petition for expunction and ordered that the theft arrested record be expunged. Believing that J.H.J. did not meet the statutory requirements for expunction under § 55.01, the Department of Public Safety appealed. The appeals court found for DPS and reversed the civil court’s order of expunction. Id., at Lexis 2.
The appeals court pointed out that J.H.J. had sought expunction under § 55.01(a)(2) which provides:
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 . . . 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 . . .;
(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.
Id., at Lexis 4-5 [emphasis original]
DPS did not contest that J.H.J. satisfied subsections (A) and (C): he was charged with a Class B misdemeanor, no felony indictment had been presented against him, and he had not been convicted of a felony in the five years preceding the date of his arrest. Id., at Lexis 5-6.
DPS’ sole contention issue on appeal was that “because J.H.J. received court-ordered community supervision pursuant to article 42.12 of the Code of Criminal Procedure, he [did] not satisfy the statutory requirements for expunction of his arrest records. See id. art. 55.01(a)(2)(B). J.H.J. generally acknowledges that he does not meet the article 55.01 expunction requirements. Under the reasoning of Cuellar v. State, [70 S.W.3d 815 (Tex.Crim.App. 2000)] however, he argues that the nunc pro tunc discharge order operates as a ‘judicial clemency’ discharge and, in effect, removes the only obstacle standing in his path to expunction. We disagree with J.H.J.’s expansive reading of Cuellar. Id., at Lexis 6.
The appeals court then discussed at length the Cuellar concept of “judicial clemency:”
”In 1976, Rudy Cuellar pled guilty to the felony offense of heroin possession. Cuellar, 70 S.W.3d at 816. He was placed on community supervision and, after he completed it, the trial court set aside Cuellar’s conviction and dismissed the indictment against him. See id. Twenty years later, Cuellar was arrested, indicted, and convicted for ‘unlawful possession of a firearm by a felon.’ See id. at 816-17. Cuellar argued on appeal that because his 1976 conviction was set aside, there was no underlying felony conviction to support the 1996 conviction, which requires, as one of its elements, a previous felony conviction. See id. at 817. The Texas Court of Criminal Appeals agreed with Cuellar and held that article 42.12, section 20(a) creates ‘two entirely different types of ‘discharge’ from felony community supervision.’ Id. at 818.
”In the ‘usual method’ of discharge, which encompasses the vast majority of felony probation sentences, a person who completes community service is still considered a convicted felon. Id. However, section 20(a) also includes a ‘second, less common type of discharge’:
“This second type of discharge is not a right but rather is a matter of ‘judicial clemency’ within the trial court’s sole discretion. That is, when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may’“set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.’ These words are crystal clear. There is no doubt as to their meaning. If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom ‘released from all penalties and disabilities’ resulting from the conviction.
Id. at 818-19 (citations omitted). Accordingly, the Court of Criminal Appeals held that, because Cuellar’s felony conviction was set aside as a ‘judicial clemency’ discharge, he was no longer a convicted felon. See id. at 820.” Id., at Lexis 6-8 [emphasis original].
Section 20(a) of § 42.12 provides the following clemency-discharge provisions: 1) the withdrawal of the defendant’s plea, 2) the dismissal of the indictment, and 3) the defendant’s release from all penalties and disabilities resulting from the offense. J.H.J. argued that while he was not statutorily eligible for expunction, the foregoing clemency-discharge provisions of § 42.12 trumped the expunction provisions of § 55.01. The appeals court said that a proper resolution of this issue could only be reached by interpreting and harmonizing the two statutes. Id., at Lexis 8.
After pointing out that under Texas law when two statutes are in conflict courts should harmonize them both by assigning each with a meaning that will allow both to stand, the court turned its attention to J.H.J.’s argument:
”On its face, the nunc pro tunc discharge order recites that J.H.J. received court-ordered probation; therefore, J.H.J. does not satisfy the statutory requirements for expunction. Were we to adopt J.H.J.’s proposed interpretation of article 42.12, we would necessarily ignore the article 55.01 proscription against expunction following community supervision. We should not adopt an interpretation that creates a conflict between these two statutes.
“J.H.J.’s interpretation also would create an irreconcilable conflict between articles 42.12 and 55.02. Article 55.02 mandates the destruction of arrest records within one year of an expunction order. Yet article 42.12 contemplates that the defendant’s arrest records must be maintained for possible future use in at least two scenarios. First, if the defendant later is convicted of another criminal offense, the defendant’s previous conviction or guilty plea ‘shall be made known to the judge.’ Second, the Texas Department of Human Services may consider a defendant’s previous arrest in deciding whether to issue, renew, deny, or revoke a childcare license. Because article 42.12, section 20(a), requires that arrest records be kept for those purposes, we do not read that statute as inconsistently promoting the destruction of those records pursuant to expunction. We will interpret this statute so as to give effect to every part, including the clause that requires the retention of a defendant’s arrest records.
”To properly harmonize both statutes, then, we hold that a person’s release from the ‘penalties and disabilities’ of a criminal offense does not entitle that person to expunction, which is a civil privilege granted to eligible citizens. As we previously held in Brooks v. Harris County District Attorney’s Office, one who receives community supervision is not eligible for expunction, regardless of the type of section 20(a) discharge he receives.” Id., at Lexis 11-13 [internal citations omitted]{emphasis original}.
The appeals court was then forced to take a circuitous route around the doctrine of stare decisis because of the Cuellar decision:
“In 2004, after Cuellar was issued, we were asked to decide whether expunction could follow a section 20(a) clemency order that terminated the defendant’s probation, set aside his conviction, permitted him to withdraw his plea, and dismissed the indictment. Brooks, 2004 WL 2381553, at *1. The petitioner in Brooks conceded that he was placed on probation but argued that, because he received a clemency discharge, the ‘probation never happened.’ We concluded that expunction was unavailable: ‘The [discharge] order confirms that probation was imposed upon appellant. Therefore, appellant is unable to satisfy condition (B) of article 55.01(a)(2).’ As in Brooks, the nunc pro tunc discharge order recites that J.H.J. was to be ‘discharged from probation.’ We re-affirm our holding in Brooks that, even where the trial court issues a clemency-discharge order, expunction remains unavailable to a person who pleads guilty and receives court-ordered community supervision. Although Brooks did not discuss Cuellar, we find Cuellar–which was not an expunction case–to be distinguishable.” Id., at Lexis 14-15 [internal citations omitted]{emphasis original}.
The appeals court concluded that while J.H.J. had made an equitable case for expunction of the theft arrest record, the courts do not have the “equitable power to extend the expunction statute beyond its stated availability.” Id., at Lexis 15. The appeals court then directed J.H.J. to the separate legal remedy of non-disclosure provided by Tex. Gov’t Code Ann. § 411.081 which allows rehabilitated individuals like J.H.J. to apply to have an arrest record sealed from public eyes. Id. The appeals court, however, attached the following caveat to its beneficial instruction: “that J.H.J. may be entitled to have his arrest records sealed does not legally entitle him to have them destroyed.” Id. [emphasis original].
Texas Code of Criminal Procedure Art. 55.01 provides:
(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 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.
EXPUNCTION
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair