New Rules on Texas Expunctions

The rules regarding Texas expunctions were amended in the most recent legislative session. Among many minor adjustments the Legislature worked in one significant change that relates to Class C Misdemeanor offenses. Previously, when a person received deferred adjudication for an offense filed as a Class C (filed in a municipal court or justice of the peace court), they would be entitled to file an expunction after completion of the probation period and dismissal, but only after the 2 year statute of limitations expired. This rule was a product of the Texas Supreme Court’s holding in the Bhat case. Effective September 1, 2011, the Texas Legislature overrode that decision by amending Section 55.01 of the Texas Code of Criminal Procedure.

The new law permits an individual who has a Class C Misdemeanor dismissed by way of deferred adjudication to file for an expunction after the expiration of 180 days from the date of arrest (or noncustodial arrest). The language which overrules the Bhat decision is subtle: “a person is entitled to have all records and files relating to the arrest expunged if: . . . an indictment or information charging the person with the commission of a misdemeanor offense . . . has not been presented . . . and at least 180 days have elapsed.” Because Class C Misdemeanors are filed by method of sworn complaint, an indictment or information is never presented. In normal legislative fashion, this is a long and confusing way of saying that a Class C dismissed by deferred adjudication is no longer subject to the 2 year statute of limitation.

Unfortunately, the amendment does not apply in the case of a Class C reduction–when a higher level misdemeanor is reduced to a Class C through negotiation. The mere act of reducing a charge to a Class C means that the individual has been charged with something greater. Since anything greater than a Class C is charged by information or indictment, the 180 day rule cannot apply. Class C reductions are still subject to the 2 year waiting period.

One final caveat presents a minor hurdle to a full expunction of the criminal charge. The legislature provided that the court shall permit the prosecuting attorney and law enforcement agency to retain “arrest records and files” of any person who becomes entitled to an expunction by virtue of the 180 day rule, unless the prosecutor certifies that the records are “not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person.” Whether municipal prosecutors will be receptive to such certifications is yet to be seen.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

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