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If it hasn't already happened to you, rest assured that sooner or later
you will be presented with a petition for expunction of records on a case
you prosecuted, a request for advice on how to get criminal records expunged, or
maybe some attorney will want to include expunging the records in a plea bargain for deferred. (Can't legitimately be done, by the way.) The
following is a quick overview of the law on expunction of criminal records in Texas,
which, fortunately, is as close to black-and-white as you're likely to come
across in our profession.
The law on expunction of
criminal records is found in Chapter 55 of the Code of Criminal Procedure. It's a short chapter, and the quickest way to understand
it is to just read it.
Until recently, it could be said with confidence that
expunction law was
some of the simplest to be found. The legislature being what it is, that
situation obviously could not remain for long, and in August of 1999, our
good lawmakers decided to complicate things by amending the statute
extensively, but only as to arrests or acquittals which occurred on or after
August 30, 1999. The changes were by and large good ones, but the result is
that a practitioner in the field will now need to maintain a copy of the
prior law, and will need to determine under which law the incident in
question falls, before it can be decided which rules apply.
Generally, a petition for expunction needs to carefully track the
requirements of the statute. Chapter 55 is pretty specific as to the
procedure for expunction. For example, Art. 55.02 Sec. 1.(b) (both versions)
requires that the petition be verified. It's surprising how often attorneys
will neglect to do that.
That section also lists 16 separate items of information, which must be
included in the petition. If any item is omitted, the statute requires "an
explanation for why one or more [of the required items] is not included."
One item is of special interest. Sec. 1(b)(8) indicates that all agencies
holding records including "all central federal depositories of criminal
records" should be listed. You are probably aware that criminal records are
tracked through FBI records (NCIC). In Texas, the DPS keeps the same sort of
When an arrest is reported in Texas, it goes into the TCIC computer, and
also to the NCIC records, and at that time the person is assigned an FBI
number. If DPS is not included on the list of agencies, they will not be
made parties and the expunction order will not be binding on them. Moreover,
the nice folks up in Washington who maintain the FBI (NCIC) records get
their information on state records directly (and only) from the state
agencies (in Texas, that is DPS Crime Records Service), so the FBI need not
be served directly, despite the language in the older version of the statute
(55.02 Sec. 1[b]). In fact, they just ignore anything they don't get from
DPS, so anyone who asks can safely be advised to save the service fees, and
the clerk's time. The FBI will just return the petition with a nice red
stamp advising in bureaucratese what can be done with it.
WHERE CAN THE CASE BE FILED?
Art. 55.02 provides that a person entitled to expunction of records may file
a petition in a district court for the county in which he was arrested. Even
though a person is arrested in one county on a warrant for charges in
another county expunction proceedings may ONLY be brought in the county of
ARREST, not the county where the charges originated. Arrests from different
counties may not be combined in the same petition, although theoretically a
single arrest on multiple warrants from different counties could be
(assuming it was the first arrest, and not a subsequent arrest for failure
to appear). The likelihood of someone with multiple warrants qualifying for
expunction of those arrest records, however, is probably slim.
WHO DO YOU REPRESENT?
When you are called upon to respond to a petition for expunction, it is very
important that you do not do so for "The State of Texas", even though as a
prosecutor you customarily represent the State. In this case, DPS represents
the State of Texas; the local prosecutor/government attorney only represents
the local agency maintaining records. In your answer (court appearances),
specify that you represent your office/agency ONLY; if you respond for the
State, you may inadvertently prejudice DPS's ability to oppose an
expunction. Your local records may not contain all the information that DPS
has about the petitioner.
DPS LEGAL DEPT AND EXPUNCTIONS
As previously noted, DPS maintains the TCIC, and they take the watchdog role
very seriously. If DPS gets an expunction order in a case in which their
records indicate that the expunction is not justified, and where they were
not notified according to the statute, they WILL file a motion for new trial
and make the court do it over again. If the local court fails to cooperate,
they just file an appeal, and legend has its that they haven't lost an
appeal in recent memory. They may let some misdemeanors slide just because
they are busy, unless the arrest is for drugs, or crimes of moral turpitude
because such convictions are of consequence in future criminal proceedings.
DPS must also be properly notified of resettings. See Texas Dept. of Public
Safety v. Deck, 954 S.W.2d 108 (Tex.App.-San Antonio 1997). You should read
From a practical point of view, however, if DPS is not included on the list
of respondents, the clerk will not send them a copy of the order expunging
the records, and the record of the "expunged" arrest will remain in the TCIC/NCIC
system. Ten years or so later, when the expungee applies for a gun license
or for federal job and gets turned down based on a DPS or FBI records check,
he will not be a happy camper.
The Texas Department of Public Safety is your best friend if you are ever
called upon to represent your office in an expunction matter. They not only
know their business, they are downright nice folks who will bend over
backwards to help you. They can be reached anytime during Austin working
hours (i.e., 8-4) at (512) 424-5841 or -5834, fax is 424-5666. Their proper
mailing address for service is:
Texas Department of Public Safety
Crime Records Division
Austin, Texas 78765-4143
Mail Service Code 0234
WHAT IS AND IS NOT EXPUNGABLE
What is actually expungable is the RECORD OF THE ARREST. That includes
anything that follows as a result of that arrest, including subsequent court
The reason for the statute is to protect people who have been wrongly
arrested. Like all of our criminal law, in protecting the innocent, we also
let some of the guilty slip by. The general rule is that any arrest that
does not result in a prosecution (no indictment or criminal information is
ever filed), is expungable. Even though somebody may be as guilty as sin,
and the police had all the probable cause in the world to arrest, if for
whatever reason there is no indictment or complaint filed, the arrest record
If the arrest results in a criminal information or indictment that is later
dismissed, the result depends on whether the charge was a felony or
misdemeanor. ANY MISDEMEANOR PROSECUTION THAT IS DISMISSED AND DID NOT
RESULT IN A PROBATION IS EXPUNGABLE. No matter why it was dismissed. This
does not include cases that are dismissed after successful completion of
probation. That case will be discussed a little later.
If the arrest resulted in a felony indictment, the records can only be
expunged if it has been dismissed and the court finds that it was dismissed
because the presentment had been made because of mistake, false information,
or other similar reason indicating absence of probable cause at the time of
dismissal to believe the person committed the offense or because it was
void. There is a question as to what court makes that finding. If a felony
case is dismissed for one of the listed reasons - the arresting agency
really did get the wrong person, or the complaining witness turns out to
have been lying all along, or whatever - BE SURE TO INCLUDE A FINDING that
the case is being dismissed for one of the statutory reasons.
There is at least one appellate case involving a defendant who had been
falsely accused of indecent conduct with a minor - there were reliable
witnesses that there had been no physical contact whatsoever and the minor
had been angry at having been disciplined and had threatened to "get even",
the police, and obviously the prosecutor also, just failed to properly
investigate the complaint.
The judge gave an instructed verdict, but failed to include a finding on the
reason for dismissal. The Court of Appeals said they were really sorry, but
the statutory language was clear and binding. No court finding, no
On the other hand, if you really believe the case should be expunged, but
the dismissal order failed to include the language, it can probably be done
(legitimately) by having the court hearing the expunction make an
affirmative finding tracking the language of the statute. But be sure the
petitioner puts some kind of evidence justifying such a finding ON THE
RECORD, or it may not withstand appeal.
A defendant is also entitled to expunction if he/she is acquitted at trial
on after appeal.
BUT CAN YOU EXPUNGE A DEFERRED ADJUDICATION?
This is the most common misinformation out there. People, and attorneys,
seem to think that
deferred adjudication, not being a conviction, is expungable. If you read the statute, it clearly says that to be eligible,
the arrest cannot have resulted in court-ordered probation under Article
42.12, Code of Criminal Procedure. Article 42.12 just happens to be where
deferred adjudication is found (Section 5), as well as regular probation.
There is plenty of case law on this point. If this is pointed out to a
defense attorney, he/she will almost always see the light and back off.
NO EQUITABLE RIGHT TO EXPUNCTION
It is important to understand that this is a purely statutory remedy, and
THERE IS NO EQUITABLE GROUND FOR EXPUNCTION. If the person doesn't qualify
under the terms of the statute, there can be no expunction. No matter how
worthy the person is (or has become) or how sorry you or the judge may feel
for him/her. See Smith v. Millsap, 702 S.W.2d 741 (Tex.App. 4th Dist. 1985,
WHO HAS THE BURDEN OF PROOF?
In an expunction, THE PETITIONER HAS THE BURDEN OF SHOWING HIMSELF ENTITLED
TO THE RELIEF SOUGHT. That means he/she must present some evidence for the
record. Often, it may simply by the petitioner's testimony. If it is not
opposed, then the burden has been met. If the petitioner does not meet the
criteria, you may be able to simply elicit that from him on
cross-examination. Often, a certified copy of court records will be
sufficient. Occasionally, you may need testimony from an arresting agency,
or from the prosecutor who was involved in a felony dismissal, to explain
why the case was dismissed.
If the petitioner just presents the petition and makes some argument does
not put on evidence, you may not technically need to present rebutting
evidence, as petitioner has failed to prove the case, but from a practical
standpoint it may be easier to go ahead and show the judge why the
petitioner isn't entitled to relief. It may save the trouble of an appeal.
See Smith v. Millsap, supra.
WHAT DO YOU DO WHEN THE JUDGE IMPROPERLY EXPUNGES THE RECORD ANYWAY?
Judges being human, they will sometimes let sentimentality, or whatever, get
the better of their judgment, and will order a record expunged that just
doesn't qualify. If you want it overturned, just call DPS. They will
generally take care of it, unless it's a really minor misdemeanor and they
have their hands full with other things. In fact, you will find that DPS, if
they have been properly notified, will often call you beforehand to see if
you are opposing an expunction. And if you need help or case law, they can
(and will) almost always fax whatever you need very quickly.
DPS will generally need your help in following up on things locally,
however, and you can assist by doing things like promptly giving notice of
appeal and requesting a transcript of the proceedings, if there was a
hearing. (Yes, judges have been known to sign expunction orders without
one.) DPS will also usually make a request for findings of fact and
conclusions of law; you should do this also. Since this is all civil stuff,
it may be foreign to a prosecutor who is accustomed to dealing with strictly
criminal matters. Again, DPS will walk you through it. They will also carry
the burden of the actual appeal.
The most important thing is to send (or fax) DPS a copy of any judgment you
get, especially if you did not have prior notice of the hearing. Delay may
hamper their ability to appeal.
SELECTED CASE LAW
The following case law may be helpful, or at least may provide a starting
point for further research:
The public has an important interest in arrest records being kept for use in
subsequent punishment proceedings, including subsequent applications for
probation. These records are valuable to document and deter recidivism.
Harris County District Attorney's Office v. J.T.S., 807 S.W.2d 572, 574
The court has no equitable power to extend the clear meaning of the statute.
State v. Knight, 813 S.W.2d 210, 212 (Tex.App.-Houston [14th Dist.] 1991)
The right to
expunction is neither a constitutional nor common law right,
but a statutory privilege. Matter of Wilson, 932 S.W.2d 263, 265 (Tex.App.-El
Paso 1996, no writ) (citing State v. Autumn Hills Centers, Inc. 705 S.W.2d
181, 182 (Tex.App.-Houston[14th Dist.] 1985, no writ).
Harris County Dist. Atty. v. Lacafta, 965 S.W.2d 568, 569 (Tex.App.-Houston[14th
Deferred adjudication probation under Article 42.12, Texas Code of Criminal
Procedure, constitutes a "court ordered probation" for purposes of Article
55.01(2). See State of Texas v. Knight, 813 S.W.2d 210, 212 (Tex.App.-Houston
[14th Dist.] 1991); see also Harris Co. Dist. Atty's Office, et al. v.
Dawson, 809 S.W.2d 359, 361 (Tex.App.-Houston [14th Dist.] 1991); see also
Harris Co. Dist. Atty's Office v. J.T.S., 807 S.W.2d 572, 573 (Texas, 1991).
A petitioner is not entitled to expunction merely for completing
adjudication probation and obtaining the consequent dismissal. Texas Dept.
of Public Safety v. Butler, 941 S.W.2d 318, 321 (Tex.App.-Corpus Christi
1997); Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 572
(Tex.App.-Houston [1st Dist.] 1991); Ex parte Elliott, 804 S.W.2d 324, 325 (Tex.App.-Houston
[1st Dist.] 1990?)
BASED ON DISMISSAL AFTER FELONY INDICTMENT
A State's motion to dismiss because the complaining witness no longer wished
to prosecute and signed a waiver of prosecution, (not uncommon in family
violence and sexual abuse cases) is insufficient to show that the dismissal
was made because of mistake, false information or similar reason indicating
absence of probable cause at the time of the dismissal to believe the person
committed the offense. See Smith v. Millsap, 702 S.W.2d 741 (Tex.App. 4
Dist. 1985, no writ).
Dismissal of an indicted felony for insufficient evidence to prosecute does
not entitle a defendant to expunction of the record of his arrest. Harris
Co. Dist. Attys. v. Pennington, 882 S.W.2d 529, 531 (Tex.App.-Houston [1st
Dist.] 1994, no pet.)
Insufficient evidence to convict beyond a reasonable doubt does not support
Harris County Dist. Attorney's Office v. M.G.G., 866 S.W.2d 796, 799 (Tex.App.-Houston
[1st Dist.] 1993, no pet.)
[A]n absence of probable cause to effect a valid search and seizure does not
vitiate the probable cause necessary for a grand jury to believe that a
defendant is guilty of an alleged offense.
M.G.G., 866 S.W.2d at 799; Ex parte Kilberg, 802 S.W.2d 17, 19 (Tex.App.-El
Paso 1990, no pet.)
In Wilkomirski v. Texas Criminal Information Center, 845 S.W.2d 424 (Tex.App.-Houston,[1st
Dist.] 1992, no writ), a case where the evidence clearly indicated
petitioner's innocence of the charges against him, and in fact the dismissal
was the result of an instructed verdict, the fact that the dismissal order
failed to include the requisite finding still required denial of his
petition for expunction. In writing its opinion, the court stated:
The expunction statute is written in the conjunctive. Appellant must satisfy
both requirements: a dismissal and a finding that the dismissal was because
of mistake or false information or other indications of the absence of
probable cause. In interpreting the statute, nothing indicates that the
legislature did not mean what it said, i.e., that both requirements were
necessary for expunction.
We are sympathetic because the record suggests the indictment was apparently
predicated on mistakes and false information that would satisfy the second
requirement. However, as the appellant cannot meet both of the requirements
of the statute, we are, regrettably, constrained to affirm [the judgment of
the trial court denying expunction]. We leave the problem to the legislature
for further consideration. Id., at 426-427. (Emphasis in original.)
The legislature has not chosen to amend the statute.
STATUTORY CONDITIONS MUST BE MET; NO EQUITABLE RELIEF
In Smith v. Millsap, 702 S.W.2d 741 (Tex.App. 4th Dist. 1985, no writ) it
was held that
. . . The right to expunction is available only when all the statutory
conditions of the article have been met, the court having no equitable power
to extend the clear meaning of the statute. . . . Further, a statutory
expunction proceeding is civil in nature rather than criminal, with the
burden of proving compliance with the statutory conditions resting solely
with the petitioner. Id., at 743.
See also Harris County Dist. Attorney's Office v. D.W.B., 860 S.W.2d 719 (Tex.App.-Houston
[1st Dist.] 1993, no writ); Texas Dept. of Public Safety v. Katopodis, 886
S.W.2d 455 (Tex.App.-Houston [1st Dist.] 1994, no writ)
DEFENDANT STILL SUBJECT TO PROSECUTION
ART. 55.01(a)(2)(B) requires that any charges resulting from the arrest in
question be "no longer pending". Although the burden generally is on the
petitioner to show entitlement to the remedy of expunction, the burden is on
the State to show that an unindicted defendant is still subject to
prosecution. In Ex parte Aiken, 766 S.W.2d 580 (Tex.App - Dallas 1989, no
writ), the court wrote:
The express terms of article 55.02, section 4(a), require the State to bear
the burden to prove that: (1) a petitioner is still subject to conviction
for an offense arising out of the transaction for which he was arrested
because the statute of limitation has not run; and (2) there is reasonable
cause to believe that the State may proceed against him for that offense.
FROM A CASE UNDER OLD LAW SAYING UNSUPERVISED PROBATION ISN'T REALLY
State v. R. B., 699 S.W.2d 296 (Tex App.-Dallas 1985), a case occasionally
cited for the above proposition, was decided under a prior version of the
expunction statute, which required that, in order to be eligible for
expunction of records of an arrest, there must have been "no court-ordered
supervision under article 42.13?. Courts will occasionally place
probationers on "unsupervised probation", and under that law, there was
therefore no "court-ordered supervision", making the arrest expungable.
Old Article 42.13 is now Section 5 of Article 42.12, and Chapter 55 now
refers to "court-ordered probation", not "supervision". Unless you have a
really old arrest (and these pop up sometimes), the issue of whether
petitioner was placed under "court-ordered supervision" is irrelevant.
THE NUNC PRO TUNC END-AROUND PLAY
In Texas Commission on Law Enforcement Officer Standards and Education v.
Watlington, 656 S.W.2d 666. 668 (Tex. App. -Tyler 1983, writ ref. n.r.e.),
the appellee (Watlington) had, as a young man, been arrested and indicted
for burglary. The court records indicated that he had thereafter waived his
rights in writing, plead guilty and received a probated sentence, which was
discharged a few months later.
Nearly twenty years later, the then-retired presiding judge testified at a
hearing that any records of a guilty plea were in error; the circumstances
of the original cases were such that young Watlington should not have been
indicted and "the charges were dismissed and the boy did go into the
Marines." Thereafter, the original district court entered a judgment nunc
pro tunc reciting that a mistake existed in the record of the 1958 judgment
and ordering that it be set aside and expunged from the records of the
That order was appealed. Unimpressed by creativity, the appellate court
reversed, holding. . .
The subsequent judgment nunc pro tunc . . . was void and ineffective
to expunge the records of the conviction and probated sentence . . .
Judicial errors, if any, in the rendition of a judgment may not be corrected
by a nunc pro tunc proceeding. . . .
Appellee's petition for expunction . . ., the court's order granting such
relief, and the findings of fact and conclusions of law filed by the court .
. . all ignore Watlington's guilty plea, felony conviction, probated
sentence, failure to appeal and subsequent discharge from probation.
Expunction is available only when all of the statutory conditions have been
met. The remedy provided by the code was never intended to allow a person
who is arrested, pleads guilty to an offense, and receives probation
pursuant to a guilty plea to expunge the arrest an court records concerning