Bad Expunction News

 Posted on June 01,2007 in Uncategorized

Today in State v. Beam the Texas Supreme Court held that a dismissed misdemeanor case cannot be expunged until the limitations period expires. That means that the many people we represent whose misdemeanor cases are dismissed will have to wait until two years after the alleged offense (according to article 12.02 of the Texas Code of Criminal Procedure) to get their records cleared. Particularly badly affected are those whose expunction cases are now pending - they paid to file their petitions on the (then-correct) assumption that they were entitled to expunction, but the Texas Supreme Court has yanked the rug out from under them.

The language that the Supreme Court was interpreting follows:

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:....

(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;

....

The question was whether (A)(i) applied to all of (A), or only to the portion of (A) after the "or." The way that Houston lawyers, including the Harris County District Attorney's Office, had been interpreting this would be more elegantly written this way:

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:....

(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

(B) 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;

If it was intended to mean what we've been treating it as meaning, the statute is dreadfully written. I can't fault the Texas Supreme Court for interpreting it as it did. There may be some hope that the Texas Legislature can straighten it out to say what it should say - that, once the State has dismissed your misdemeanor case, you can get the records of your arrest expunged.