Texas Expungement

**Oshay** · 06-27-2005, 01:08 PM

In 2001 I was arrested for felony theft. Apparantly, I had been indicted by a grand jury, arrested and jailed for 5 weeks before seeing a judge. On top of that, when I presented information to my Court appt Atty that contradicted the charges she did nothing with it.

It wasn't until the day before my trial that we meet with the Da and he stated to me; find him something to make the case go away. I asked to look throught the records that was presented to the Grand Jury and maintained by the state organization and found that the records did not contain the documents I presented to my atty. The DA was presented with these document. He made copies of these document and inserted them into the file. Because of missing documents that should have been in my file, I felt this case should have been dismissed.

Instead the DA offered a pre-trial diversion and my atty stated that this would be the best offer I would get. Be mindflul that I told my atty that I did not want to do anything that would give even the possibility that I was guilty and having never been in any legal trouble, attending school, conducting millitary training and raising 2 children while going through this ordeal I trusted my atty to take the best road for me. Ignorance is not bliss and boy was I wrong.

As a requirement of my pretrial diversion I was to report to a probation officer until restitution was made and upon completion this case was to be dismissed. Yes, partial restitution was also apart of this agreement.

My question is, will the probation which was apart of my pretrial diversion agreement affect my abiity to expunge my records? No other charges were affiliated with this case, I've never been charged or convicted before this situation and the indictment was dismissed. This whole ordeal has been one nightmare I'd like to have end.

Thank you for your time.

**aaron** · 06-27-2005, 03:04 PM

Expungement laws, and the nature of records that can be expunged, vary significantly depending upon the jurisdiction involved.

**Oshay** · 06-27-2005, 03:24 PM

All of this happened in Nueces county, in tx

**aaron** · 06-27-2005, 05:52 PM

The statutory language suggests that you might not be eligible to apply for expunction of your record, unless the resolution of your delayed disposition was an acquittal by the trial court.

Quoting Texas Code of Criminal Procedure, Art. 55.01

Right to Expunction

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

(b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:

(1) tried for the offense for which the person was arrested;

(2) convicted of the offense; and

(3) acquitted by the court of criminal appeals.

(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

(d) A person is entitled to have any information that identifies the person, including the person's name, address, date of birth, driver's license number, and social security number, contained in records and files relating to the arrest of another person expunged if:

(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person's identifying information without the consent of the person asserting the entitlement; and

(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person's identifying information.

Given your circumstances, it seems peculiar that you would not be able to obtain an expunction. Perhaps a Texas lawyer can provide some insight into what steps might be available, given your circumstances, such that you could qualify for expunction.

**vmcmurry** · 08-04-2005, 07:46 PM

A person may petition a court for an order of nondisclosure five years after the discharge and dismissal of enumerated misdemeanor offenses and ten years after the discharge and dismissal of felony offenses for which the person was placed on deferred adjudication and successfully completed the required community supervision [Tex. Gov't. Code 411.081(d)(1)(2) ] You can email me if you would like if you want more information.