Expunctions and Non Disclosures
Tarrant County Hispanic American Bar
April 26, 2006
Table of Contents
Expunctions ……………………………………………3
Diagram of statute ……………………………………………….. 3
Bhat changes …………………………………………………….. 4
Hoogerwerf ……………………………………………………… 4
Identity Theft ……………………………………………………. 6
Filing Jurisdiction ……………………………………………….. 7
No Probable Cause cases ……………………………………….. 8
Statute of Limitations Added …………………………………… 8
Convicted of Felony within 5 years prior ………………………. 9
Convicted under 12.44 a or b …………………………………… 9
The Petition ……………………………………………………... 9
What cannot be expunged ……………………………………… 10
Plea in Bar Cases ……………………………………………….. 11
Partial Expunction …………………………………………….. . 11
Expunction of less than all charges …………………………….. 12
When Expunction Granted ……………………………………… 12
File Petition only when Eligible ………………………………… 12
Expunction to control availability of evidence in civil suite ….… 12
Non Disclosures ………………………………………. 13
Petition requirements ……………………………………………. 13
Waiting Periods …………………………………………………. 14
Ineligible to seek non disclosures ……………………………….. 15
Web site information ……………………………………………. 16
State agencies exempt from statute ……………………………… 16
Table of Cases ………………………………………..18
Expunctions and Non Disclosures
Expunctions and Non Disclosures
Expunctions
Chapter 55 of the code of Criminal Procedure was originally passed in 1977. It was straightforward and limited to those circumstance specifically set out in the statues. It was seldom used because the existence of arrest records was seldom used to determine job opportunity or housing placements. With the development of the information age and the internet, making arrest, as well as conviction information available cheaply and instantly arrest records figure into a greater number of decisions daily. When two applicants are equally qualified and one has to use a part of their face time to explain how and why he or she was wrongly arrested, it is easy to figure who is likely to get the job or the apartment. It has also been known to turn an opportunity for promotion into an out right dismissal from employment.
With amendments to the statue expunction of arrests are now available in the following situations:
Acquittal
Pardon after conviction, or if
Felony and Misdemeanor and
No indictment or information presented or
If Felony indicted or Misdemeanor filed
Dismissed or quashed and
Statute of limitations has expired or
Presentment of the indictment was due to
Person released and
Person has not been convicted of a felony in the five years preceding
the arrest sought to be expunged
BHAT
After State v. Bhat 127 S.W. 3d 435 (Tex App-Dallas 2004) Misdemeanors and Felonies are treated the same. Before Bhat any reason for a dismissal of a misdemeanor other than dismissal following probation was good enough to allow expunction. Prior to Bhat, misdemeanors were governed by Ex parte Michael Davis Scott, 818 S.W.2d 226 (Tex App.-Corpus Christi, 1991). The requirement of an arrestee seeking expunction of an arrest record show that there had been neither an indictment or information charging a felony, or that the felony indictment or information was dismiss because the filing of charges was due to fraud, mistake or reason indicating lack of probable cause did not apply to an arrestee charged only with a misdemeanor. This requirement does now apply to misdemeanors or else the Petitioner must show that the Statute of Limitations has expired. See also, Collin County Criminal District Attorneys Office v. Dobson, 167 SW3d 625 (Tex.App.-Dallas 2005, no pet.).
HOOGERWERF
Some lawyers had raised a question as to whether Bhat had to be followed since it was a court of appeals opinion from the Dallas Court of Appeals. That issue is now mute since Dallas County District Attorney’s Office v. David Hoogerwerf not reported in S.W.3d, 2005 WL 3436557 (Tex. App.-Fort Worth) decided December 15, 2005. Hoogerwerf was arrested in DentonCounty in June 2001 by Irving Police for sexual assault committed in DallasCounty on September 30, 2000. Hoogerwerf, Appellee, filed an expunction in October 2003 in DentonCounty a hearing set November 14, 2003. The Court notified Dallas County Criminal District Attorney, Appellant, of this hearing. Dallas DA’s Office was not present but no hearing occurred.
On September 7, 2004 Appellee filed a petition in DallasCounty to expunge the same records. Appellant filed a general denial to the petition.
On November 8,2004 a hearing was held on the Denton County Case. Denton DA’s Office was present but claimed no prior notice and reported that Appellee had told Asst. Denton DA that it was planning on securing an indictment. Appellee requested to put on testimony and hold a decision on the expunction for two weeks to see if Dallas, Appellant, would indeed indict or file against Appellee. The Court asked Denton Prosecutor if he was opposed to this request. Included in Appellee’s testimony was the fact that Appellee had several times been told of Appellant’s intention to look at case and that Appellant had not done so. The Denton Prosecutor requested the court reset the case for a final ruling two weeks later to allow Appellant to indict Appellee or not. On November 22, without a hearing on the record the court granted Appellee’s petition for expunction.
On December 8, 2004, after receiving notice of the trial courts order granting the expunction, Appellant filed a motion for new trial. At hearing on motion for new trial Appellant claimed no notice of November hearing and that case was an active investigation in Dallas County and also argued that, as a matter of law, because the ten-year statute of limitations had not run, Appellee was not entitled to expunction. The District court denied MNT, granted the expunction.
On appeal, Appellant argued 1) the evidence is legally insufficient because Appellee failed to offer any proof that the statute of limitations had run, that the case was no longer pending, or that he had not been convicted of a felony in the five years preceding the arrest; 2) the trial court erred in granting an order of expunction without providing notice of the November 2 or November 22, 2004 hearings to respondents named in the petition, including Appellant, and 3) the trial court abused its discretion by issuing an order in a civil expunction proceeding enjoining a criminal grand jury from receiving evidence in a criminal case. The Fort Worth Court of Appeals agreed that the evidence is legally insufficient to support the trial court’s order granting expunction of criminal records because Appellee failed to offer any proof that the statutory requirements of Article 55.01 of the Texas Code of Criminal Procedure were met. To prevail the Appellee would have had to prove all of the following:
(A) no indictment or information charging the person with a felony had been presented or if an indictment or information 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.
(ii) (does not apply to this case.)
(B) the person has been released and the charge if any, has not resulted in a final conviction and is no longer pending…; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Appellee’s proof failed in at least 2 respects, his admission that he had been told several times that the Dallas DA’s Office was going to look at the case. “No longer pending,” would imply a settled status, being told several times it was to be looked at does not show “no longer pending”. Second, Appellee did not prove and could not prove that the statute of limitations had expired before the petition was filed.
As a practical point it would be a good idea to plead the positive points that make client eligible like:
1. statue of limitations has expired before the filing of this petition
2. petitioner plead to class “C” misdemeanor, received DFAJ and judge noted completion of DFAJ on docket and dismissed case.
3. if only eligible for partial expunction state what is being asked for. Petitioner seeks expunction of (offense) which was charged in indictment and was not waived or abandoned prior to trial and petitioner was not found guilty of during plea.
4. Identify in title what you are seeking… Not Guilty .. partial expunction of charges not addressed in plea.
Acquittals and pardons do not require absence of felony convictions for five years prior to the arrest sought to be expunged.
The Statue requires a least 30 days between the filing and the hearing date, unless the petition is based on acquittal. Originally the hearing on acquittals was to be heard in the court where the acquittal occurred. Jurisdiction to grant expunctions by County Court Judges, JP’s or Municipal judges was limited to 30 days following the entry of acquittal. Since September 2003 all expunctions based on acquittal are required to be filed in District Court but the hearing and granting of relief should be held or granted with in 30 days. A person seeking expunction following acquittal does not loose his right to expunction merely because the 30-day deadline passes. Bargas v. State, 164 SW3d 763 (Tex. App. – Corpus Christi 2005)
Identity Theft
Prior to September 1, 2001 there was no remedy in the expunction statute for those who were the victim of identity theft. For years criminals, attempting to avoid arrest claimed to be someone else and would give someone else’s name, birth date, and other information hoping to avoid outstanding arrest warrants existing or believed to exist. Some of our brilliant defendants managed to get arrested because the person they claimed to be had arrest warrants out and they did not. This was not the usual case and this gave many honest citizens large headaches trying to explain that a brother, sister, cousin, friend or enemy had used their identity when arrested. One reason expunction was not available prior to 2001 was because the statute appeared to require petitioner be arrested to have the benefits of the statute.
Relief is only available if the arrested person gave the victims name and or personal information without the consent of the person seeking expunction.
Originally a victim of identity theft was required to file his own petition and wait the 30 days before hearing and carry the burden of proving his case at the hearing. As of September 2003 a victim of identity theft may secure a set of verified fingerprints, give them to the Sheriff’s Office in Tarrant County, if that is their residence and the Dispute Resolution Officer will compare the fingerprints of the Petitioner to the fingerprints of the person using their name at arrest and write a report that The Tarrant County Criminal District Attorney will use to secure an order to expunge the petitioner name and identification from the records of the person who was actually arrested. We are trying to cover all the locations where this Identity theft occurred. Relief is only available if the arrested person gave the victims name and or personal information without the consent of the person seeking expunction. In this instance arrest records are corrected rather than destroyed. Victim must file a sworn application with DA and that application will be filed with clerk when order is presented to the Judge.
Filing Jurisdiction
Prior to September 1999 a petition for expunction was required to be filed in the county where the arrest occurred. After September 1, 1999 a petition can be filed in the county of arrest or the county where the offence occurred.
Until September 2003 the statue specified an arrest. This was thought to be an actual arrest. Harris County District Attorney v. Lacafta: 965 SW2d 568 (Tex. App.-Houston {14th Dist.]1997, no writ). This was modified in Carson v. State, 65 SW3d 774 (Tex. App. – Fort Worth 2001) where the court ruled that the voluntary appearance in the court to defend himself as a result of a letter from a city prosecutor notifying him of the charge, and the time and place of the trial constituted an arrest for purposes of this statute. The Legislature as of September 1, 2003 now specifies a custodial or non-custodial arrest. Signing a promise to appear after being stopped for a traffic violation would be a sufficient arrest for the statute. The statute does not currently specify what a non-custodial arrest is.
No Probable Cause Cases
Before 2001 proof that the indictment was a mistake, fraud, or the dismissal was because there was an absence of probable cause to believe the person committed the offense was a difficult burden to meet.
The following cases found the offered proof did not justify expunction:
Dismissal due to fact that evidence would not prove case beyond a reasonable doubt. (higher burden for conviction than indictment) Harris County District Attorney’s Office v. M.G.G., 866 SW2d 796 (Tex. App. –Houston 1993, no writ).
Grand Jury’s consideration of inadmissible evidence such as illegally seized evidence or inadmissible confession is not the same as showing that the factual underpinnings to the presentment and indictment of the offense were incorrect. County District Attorney’s Office v. M.G.G., 866 SW2d 796 (Tex. App. –Houston 1993, no writ).
Dismissal due to missing witness is not lack of probable cause. Texas Department of Public Safety v. Mendoza, 952 SW2d 560 (Tex. App. – San Antonio 1997, no writ).
To meet his burden of proof under this provision, a petitioner must show both that mistake, false information, or similar reason caused the indictment to be presented and that the fact of wrongful or mistaken presentment caused the dismissal. Also the finding that the presentment had been made because of false information or mistake requires proof that the grand jury based its decision to indict on erroneous facts, Sink v. State, 685 SW2d 403 (Tex. App. – Dallas 1985, no writ); Ex parte Kilberg, 802 SW2d 17 (Tex. App. – El Paso 1990, no writ).
Statute of Limitation added
In 2001, the statute of limitations became a method of getting dismissed felony cases off of a person’s record. This is true except in cases having no statute of limitations or statutes of long duration such as sexual statute of limitation.
Convicted of Felony within 5 years
Convicted within 5 years prior to the date of arrest means not only case where petitioner convicted and sent to IDTDCJ but also includes convicted and given probation. In straight probations the date used to calculate the five years is the date petitioner was placed on probation, not date probation was revoked. Heine v. Texas Department of Public Safety, 92 SW3d 642, (Tex. App. – Austin 2002).
In Jackson v. State, Dallas Court of Appeals, not reported S.W. 3d 2005 WL 2337977 (Tex. App. - Dallas No. 05-04-01295-CV, decided September 26, 2005, a petitioner tried unsuccessfully to argue that the conviction date for his DFAJ was the date the judge placed him on DFAJ rather than the date he was revoked which was within the 5 year period prior to the arrest sought to be expunged.
Convicted under Sec.12.44 a or b
It is possible to negotiate a plea to a misdemeanor from a felony and have nothing to expunge. If you reduce the felony to a misdemeanor of the same name you no longer have a felony arrest to expunge. The felony arrest is necessary to support the offense reduced to a misdemeanor. If you negotiate a specific misdemeanor to be the offense the petitioner pleads to then the felony can still be expunged. See: Texas Department of Public Safety, Appellant v. Lawrence Six, Appellee 25 SW3rd 368 (Tex. App- Fort Worth 2000)
The Petition
Article 55.02 sets out the requirements of the petition:
Petition must be verified
Contain the following information or a reason the information was not included:
Full name
Sex
Race
Date of birth
TX Driver license
Social Security
Address at time of arrest
Date of Arrest
Date of Offense
Charge at arrest
County of Arrest
Court
Cause Number
Agency making arrest
TRN
List of Agencies holding records and Addresses
Petitions seeking the expunction of a case based on acquittal must include a copy of the judgment of acquittal with the order.
Petitions involving Stolen Identity require additional information where known:
Name of the person Arrested
A statement that the petitioner is not the person arrested
A statement that the petitioner did not give the person
arrested consent to falsely identify himself or herself as
the petitioner Art. 55.02, Sec. 1 (e)
Verified fingerprints must be attached
When order granting an “identity theft” expunction is signed each respondent agency shall:
Obliterate all portions of the record that identify the petitioner
Substitute for all obliterated portions of the record any available
Information that identifies the person arrested. Art 55.02, Sec. 5(f)
Files need not be returned to the court and no deletions of index
References need be made Art. 55.02, Sec 5(f)(2). Just changes to remove petitioner’s name and or identifying data.
What cannot be expunged
The following cannot be expunged:
Guilty – jail
Guilty – fine
Guilty – IDTDCJ
Guilty – Probation
DFAJ – except Class C misdemeanors where judge
notes on docket that DFAJ has been completed and case
is dismissed.
Drivers license suspensions imposed because of breath refusal
Or because petitioner failed test except when petitioner has been acquitted of DWI. Tex. Trans. Code Ann. §§
524.015 and 724.048.
Corporate criminal cases. State v. Autumn Hills Center, Inc.,
705 SW2d 181 (Tex. App. – Houston [14th Dist] 1985).
Records held by individuals or private entities. Only applies to
records held by State Agencies.
Records held by federal agencies (DPS
requests FBI to comply).
Cannot expunge records held by public data. Com (they
may voluntarily comply)
Art. 55.01 (c) provides that expunction can be
denied even on an acquittal if the offense arose out of a criminal episode and the petitioner was convicted of or remains subject to prosecution for at least one other offense.
Upon request the court may order investigating agencies and
prosecuting agencies to keep their records if they support more than one case or more that one defendant. The expunction can be accomplished if the expunged offence is deleted from the records or if references to the petitioner are obliterated.
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