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Wiping the record clean: 2011 changes in expunction law

The modern landscape

In the modern computer age, information about one's criminal history is becoming more available online and is being accessed for a variety of purposes, including employment background checks. As a result, expunctions (or expungements) are being used more and more.

Black's Law Dictionary defines "expungement of record" as the "process by which record of criminal conviction is destroyed or sealed from the state or federal repository." Each state has its own procedures as to how the expunction process operates. In Texas, the 82nd Legislature in 2011 made major changes in the statutory provision that deals with expunction.

Waiting period expunctions

Previously a person couldn't get what is referred to as a "waiting period" expunction unless the statute of limitations for the offense in question had expired, or the indictment for the felony had been dismissed for a number of stated reasons. What this meant, however, was that an expunction was not obtainable by person who was arrested for an offense with no statute of limitations, such as child sexual assault.

In 2011, the law was changed such that an expunction is obtainable if the petitioner is no longer being held in jail and he or she can prove that there is no active investigation of his case by the police or prosecutors, if no charges have been filed through an indictment or information after the passing of a certain waiting period following the arrest: (1) 180 days for Class C misdemeanors; (2) one year for Class A and B misdemeanors; and (3) three years for felonies. If such an expunction is granted, the petitioner's criminal history that is in the public domain will be destroyed, but the police and prosecutor will be allowed to retain the information they gathered so that they may continue their investigations if they deem them necessary.

Discretionary expunctions

Also, in 2011, discretionary expunctions were added to the law, under which the prosecutor has the authority, up until an arrested person is actually tried, to make a recommendation for an expunction, which recommendation must be approved by the court. Previously any of the petition's respondents were allowed to protest the expunction, despite the fact that the prosecutor had agreed to it.

No restrictions exist for this type of expunction. For example, unlike a waiting period expunction, proof that his case is not pending is no longer required from the petitioner.

Actual innocence expunctions

Previously a person who claimed actual innocence could probably obtain an expunction either through the result of having his case dismissed for lacking probable cause, or as the result of a pardon. In 2011, the legislature changed the law, such that an immediate expunction may be obtained if the judicial order or pardon clearly indicates that it was granted on actual innocence grounds.

The petitioner must notify the state, but not all the petition's listed agencies, after which the expunction is automatically granted. The procedure that is mandated is as follows: The state prepares the order of expunction and notifies the listed agencies; the records of each agency which are deemed relevant are sent to clerk of court; the records are retained until the end of statutory limitation period for any wrongful imprisonment civil case.

Conclusion

If you believe that you have been wrongfully arrested, or have been found innocent of the charges brought against you, you should contact an experienced criminal defense attorney immediately to investigate the facts of your case and to secure for you the legal relief to which you are entitled.

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