When an arrested person was never formally charged or the case was dismissed before trial are governed by Article 55.01(1)(2) and have two basic requirements:
- The petitioner has been released without either a final conviction or court ordered supervision, and
- The statute of limitations has run, the indictment was dismissed for certain reasons, or a waiting period has passed.
Requirement 1 : Release
A person seeking an expunction under section 2 must first prove that he was released without serving community supervision for anything other than a Class C misdemeanor or receiving a final conviction in the case. Final conviction refers to an adjudication of guilt. Deferred adjudication renders a person ineligible for an expunction despite not being a final conviction. However, petitioners who received deferred adjudication out of a justice or municipal court are still entitled to expunge those records. Unmonitored probation except for Class C misdemeanors renders a person ineligible for expunction.
Requirement 2: (A) Waiting Period, (B) Reason for Dismissal, or (C) Statute of Limitations
There are three distinct ways that a person may receive an expunction under Article 55.01(a)(2):
- Petitioner may comply with a statutory waiting period or receive permission form the prosecuting attorney
- The case may have been dismissed for a certain reason
- The statute of limitations may have run
Each of these provision has its own particular requirements
(A) Waiting Period
If an indictment or information has not been presented, then a person may receive an expunction after a certain waiting period has passed. The waiting period is:
- 180 days for Class C misdemeanors
- 1 year for all other misdemeanors
- 3 years for all felonies
This applies only if an indictment or information has never been presented. Once an indictment or information is presented, even if it is later dismissed, this section no longer applies. Additionally, if the person was charged with both misdemeanors and felonies arising out of the same truncation, then the person must with the felony waiting period before he is eligible for an expunction under this section. The two misdemeanors waiting periods apply only if here was no felony charge arising out of the same truncation for which the person was arrested.
Note, however, that expunctions granted under the waiting period are not full expunctions. If an expunction is granted under this subsection, then the trial court is required to include a provision in the order that the law enforcement agency and the prosecuting attorney may treating the arrest records and files. This was intended to balance the petitioner’s interest in having his record cleared with the State’s interest in being able to prosecute the case. Essentially, waiting period expunctions operate more like nondisclosures, preventing outside agencies from obtaining the records but allowing the law enforcement agencies to balance the petitioner’s interest in having his record cleared with the State’s interest in being able to prosecute the case.
Finally, even if the waiting period has not passed, the expunction may be granted if the attorney representing the State certifies that the arrest records are no longer needed for use in any criminal investigation or prosecution, including prosecuting another person. This provision will therefore apply only if the State has determined that no offense was committed, not that the wrong person was arrested for the offense. If an expunction was granted under this subsection, then the provision allowing law enforcement to keep records is not added to the expunction order.
(B) Case Dismissed
Reason for dismissal : if an indictment or information was presented, then the person may obtain an expunction if it was later dismissed or quashed. But he must show that the indictment or information was dismissed because:
- The person completed an authorized pretrial intervention program,
- The presentment had been made because of mistake, false information, or other similar reason indication absence of probable cause at the time of the dismissal to believe the person committed the offense, or
- It was void
An indictment is only presented when the grand jury returns a true bill of indictment to the court or an information is properly filed. A case that is no billed by the grand jury, therefore, has not been presented, and the petitioner must wait the for the expiration of either the waiting period or the statute of limitations.
To qualify for an expunction, the evidence used to indict the petitioner must be erroneous or false. The false information must be directly related to the reason for dismal. Examples that would qualify include a material witness lying to the grand jury, fabrication of important evidence such as a drug test, or failure to present exculpatory evidence to a grand jury.
(C) Statute of Limitations
Finally, a person may obtain an expunction if prosecution of the offense is no longer possible because the limitations period has expired. The limitations period may be found in Articles 12.01 and 12.02 of the Code of Criminal Procedure.
Collin County criminal lawyer Constantine Anagnostis dedicates his practice to people who are facing criminal charges, with a primary emphasis on DWI, Drug Offenses, Expunction & Nondisclosure Agreements, and Occupational Driver’s License Issues. Collin County criminal lawyer Constantine G. Anagnostis understands the law, procedures, and penalties pertaining to criminal law, and will aggressively fight to protect your rights. Dallas criminal lawyer Constantine Anagnostis provides the utmost personal dedication to each and every case, and truly cares about his clients. You may call 817-229-0319 to schedule a free consultation, or submit a sample case form. At the Law Office of Constantine G. Anagnostis, we look forward to helping you.