Expunging Felony Arrest Records

Last week we examined the expungement of misdemeanor arrest records. Today we'll look at the more difficult case scenario . . . Expunging the felony arrest record.

Regarding felony charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a felony is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:

(1) The person was tried for the felony and was acquitted;

(2) The person was convicted of the felony and subsequently pardoned;

(3) The person was convicted of the felony and subsequently acquitted by the Texas Court of Criminal Appeals; or

(3) An indictment or information charging the person with the commission of a felony was not presented against the person, the statute of limitations period expired before the date on which the expunction was filed, the person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.

If a felony charge was dismissed prior to indictment the arrest record is expungable, provided the statute of limitations has expired. Chapter 12 of the Texas Code of Criminal Procedure establishes the limitations period for felonies and other offenses. The minimum period of limitations for a felony is 3 years. However, depending upon the offense the limitations period can be 5, 10, or 20 years. For offenses like murder and manslaughter, there is no statute of limitations.

However, if a felony charge was indicted, then a person can obtain an expungement of their records only if:

(1) The indictment was dismissed or quashed: and

a. The limitations period expired before the date on which the petition for expunction was filed; or

b. The court finds that the indictment was dismissed or quashed because the presentment was made because of mistake, false information, or other similar reason indicating the absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void: and

(2) The person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.

Next week we'll look at the procedure for expunging criminal records and why the services of a qualified Bryan|College criminal defense lawyer are critical to success.

Expunging Misdemeanor Arrest Records

Potential clients often call asking whether their particular case is expungable.  My first question is whether the person was arrested for a felony or a misdemeanor offense? If arrested for a misdemeanor, my next question is always "how was your case ultimately resolved?"  Was the case dismissed?  Were you found guilty and placed on probation? Did you received deferred adjudication?  Were you found not guilty after a trial?  Have you been pardoned? 

Regarding misdemeanor charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a misdemeanor is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:

(1) The person was tried for the offense and was acquitted;

(2) The person was convicted and subsequently pardoned; or 

(3) An indictment or information charging the person with the commission of a felony had not been presented against the person, the statute of limitations period (usually 2 years) expired before the date on which the expunction was filed, the person had been released, the charge had not resulted in a final conviction, the charge was no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person had not been convicted of a felony in the five years preceding the date of the arrest. 

Under this statute, if a misdemeanor charge resulted in a dismissal the arrest records could be expunged.  Dismissal could result if the trial court granted a motion to suppress evidence and the case was dismissed.  If a motion for directed verdict was granted the arrest is subject to an expunction.  Any termination of a misdemeanor prosecution that did not result in a conviction or probation (including deferred adjudication) can be expunged. In other words, no probation, regardless of the type or whether it was successfully completed, is expungable.

Next week we'll look at felony arrest records . . . much more difficult to expunge!  If you have a misdemeanor arrest that might be expungable, call a Brazos County criminal defense lawyer to explore your options.

Deferred Adjudication and Non-Disclosure Unraveled

Many people have heard of deferred adjudication.  Deferred adjudication typically occurs by way of a plea bargain when the accused person pleads guilty to an offense, but the judge "defers" a finding of guilt while the person is on probation.  Assuming the person complies with the terms of their probation and completes deferred, the original guilty plea does not result in a conviction and the charge is "dismissed." 

The average client believed when they completed deferred adjudication successfully, their "criminal record" would be wiped clean.  In other words, after being discharged from deferred, the average client (and even some lawyers) thought the charge was set aside with a finding of not guilty and, therefore, the arrest and charging records would not not be available to the public.   Some people even believed a person who successfully completed deferred was eligible for an expunction of  their records. 

Regretfully, this misunderstanding often came home to roost when folks found out these records were available to the general public in any courthouse.  The records were also available through the Texas Department of Public Safety. Making matters even more difficult for clients was the plethora of Internet providers who purchase criminal history data from the state's and make the records available on the Internet. 

However, the Texas legislature finally realized that persons who received deferred adjudication and completed probation successfully needed relief from the stigma attached to having pled guilty to a criminal offense.  Consequently, it passed a law allowing for an "Order of Nondisclosure" in certain cases when deferred had been completed.  The law stated: "After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information relating to the offense giving rise to the deferred adjudication."  Tex. Gov't Code sec. 411.081

A person who received deferred adjudication for a misdemeanor can often petition the court for an Order of Nondisclosure immediately upon the successful discharge from probation.   However, there is a two-year waiting period following the completion of probation for persons on deferred for indecent exposure, public lewdness, disorderly conduct, obstructing a highway, false report, interference with an emergency telephone call, harassment, cruelty to animals, unlawfully carrying a weapon, or making a firearm accessible to a child.  All persons who received deferred adjudication for a felony charge must wait five years before becoming eligible for a nondisclosure order.  

During the waiting period, the person must not have been convicted of, or placed on deferred adjudication for, any offense "other than" an offense that resulted "only" in a fine under the Texas Transportation Code.  A person shall not be granted an Order of Nondisclosure if that person has been previously convicted or placed on deferred adjudication for any of the following: (1) An offense requiring registration as a sex offender; (2) Murder, capital murder, injury to a child, elderly or disabled, endangering a child, violation of a protective order, stalking, or aggravated kidnapping; or (3) Any other offense involving family violence. 

If an Order for Nondisclosure has been issued, information is not available by a public records request.  A person who has obtained a nondisclosure order may deny the occurrence of both the arrest and prosecution to which the information relates "unless it is being used against that person in a subsequent criminal proceeding."  All private entities that collect and compile criminal histories must comply with nondisclosure orders or face penalties and/or prosecution for releasing information in violation of the order. 

If you believe you might be eligible for an Order of Nondisclosure, don't hesitate to contact the Bryan|College Station Expunction Attorney to discuss your options.  

Only A Ticket for Marijuana?

Several potential clients called and were confused about a relatively new law allowing police officers to simply "ticket" a person for possessing marijuana rather than formally arresting them and taking them to jail.

In 2007 the Texas legislature passed a law that provides police officers the discretion to cite and issue a summons for certain Class A and B misdemeanors, rather than arresting the person and booking them into the county jail. The new law is found in Article 14.06 of the Texas Code of Criminal Procedure. It applies to the possession of small amounts of marijuana (under 4 oz.) and other offenses such as criminal mischief under $500, graffiti, theft under $500, theft of service under $500, possession of contraband in a correctional facility, and driving while license invalid. Practically speaking, the person appears before a magistrate, just like when booked into jail, but must be released on a personal recognizance (PR) bond.

Importantly, the police are only given discretion to ticket persons who live in the county where the offense allegedly occurred. If you live outside the county the officer is obligated to take you to jail. The bottom line? Whether you receive a "ticket" for possessing marijuana, or are arrested, you still face the same misdemeanor charge . . . a Class A misdemeanor for possessing between 2 and 4 ounces; or a Class B misdemeanor for possessing less than 2 ounces.

If you've been ticketed, or arrested, for possessing marijuana or any drug or controlled substance, you need an experienced Bryan|College Station Drug Charges Lawyer to assist in your defense.  Please give us a call. 

Applying For a Texas Pardon

Last week we looked at Texas executive clemency (pardons) and the opportunity convicted persons have to restore their citizenship rights through full, conditional, or innocence based pardons.  Now a short study of how folks go about applying for a pardon.

The pardon process begins with a lengthy application process. Before beginning the Board of Pardons and Parole recommends the applicant obtain the following documents: (1) offense reports for any arrests; (2) certified court documents for these arrests including complaints, indictments,  judgments, orders of dismissals, etc; (3) an official criminal history statement from their local county sheriff; and (4) three current letters of recommendation from persons other than family members who are familiar with the applicant.

The official pardon application form is found at the Board of Pardons and Parole website.   After downloading the handy form allowing an applicant to fill in information using a standard word-processing program, the person carefully completes the application using the pardon application checklist, also provided.

There are limitations to applying for executive clemency in Texas, however.  The Board will not consider a full pardon requests for the following cases: treason, arrests with no conviction, deferred adjudications, early dismissals from probation, Class C misdemeanors, out-of-state felony convictions, federal convictions, or applicants who were denied a full pardon less than one year prior to the present application. 

An application for a pardon in Texas can be a tricky process.  If you are interested in seeking a pardon, contact a qualified Texas criminal defense lawyer to assist you in preparing the application.