Posted on
April 18, 2010 in
(The reason for this post is that nondisclosure and expunction are simple enough that lawyers, at least, should get the facts right, and they don’t. I do not seek more clients who want to clear their criminal records, so I will probably regret posting this—lookie-loos and wannabe clients will ignore this disclaimer and call me with their record-clearing questions. If you call me with such questions, please have a credit card handy.)
There are four tools for clearing a person’s record in Texas:
- Expunction, which removes records of the arrest from all governmental agencies’ records;
- Nondisclosure, which removes records of the case from public view;
- Habeas corpus, which if successful (rare) reopens the case and gives D a chance to fight it right; and
- Pardon (exceedingly rare).
Broadly:
Expunction is available only for charges of which a person was acquitted or which were dismissed without any class-B or class-A misdemeanor or felony probation.
If he pled guilty or no contest to a class-B or -A misdemeanor or a felony, he can’t get his record expunged no matter how long ago it happened. If D paid a fine on a class-C misdemeanor, he can’t get his record expunged.
Expunction is available immediately if he was acquitted. Expunction is available after the statute of limitations has run if the case was dismissed.
The Texas expunction statute refers to expunction of records of an arrest. If he was charged with more than one offense in an arrest, and if some of the charges, standing alone, would be expungeable and others would not, whether the nonexpungeable results bar expunction of the others is an interesting question.
If D pled guilty or no contest to a class C misdemeanor and took a “special expense” or a “class C deferred adjudication,” which is not a true deferred adjudication but a “suspension of sentence and deferral of final disposition” under Article 45.051 of the Texas Code of Criminal Procedure, expunction is available after the statute of limitations—for most misdemeanors, two years from the date of the offense—has expired.
An expunction is a new lawsuit filed in civil district court and served on all of the governmental agencies that are likely to have records. If the legal requirements for expunction are met and the proper procedure is followed, the civil judge has no discretion to deny expunction. In Harris County, the process takes a couple of months from filing the petition to getting the order signed.
A petition for nondisclosure allows a judge to order records of a successfully completed deferred adjudication probation from public view.
Most class A and B misdemeanor deferred adjudication probations are ripe for nondisclosure as soon as the probation is completed.
Nondisclosure is not available for:
- an offense requiring registration as a sex offender under Chapter 62;
- an offense under Section 20.04 of the Texas Penal Code (aggravated kidnapping);
- an offense under Section 19.02 (murder), 19.03 (capital murder), 22.04 (injury to a child, elderly individual, or disabled individual), 22.041 (abandoning or endangering a child), 25.07 (violation of a protective order), or 42.072 (stalking) of the Texas Penal Code; or
- any other offense involving family violence.
Outside of those offenses, nondisclosure is generally available for a misdemeanor deferred adjudication immediately upon completion of the probation. There is a two-year wait for nondisclosure after completing deferred adjudication probation for a misdemeanor offense under these Texas Penal Code chapters:
- 20 (kidnapping and unlawful restraint);
- 21 (sexual offenses);
- 22 (assaultive offenses);
- 25 (offenses against the family);
- 42 (disorderly conduct and related offenses); and
- 46 (weapons offenses).
There is a five-year wait for nondisclosure after completing deferred adjudication probation for a felony.
A person is not eligible for nondisclosure if, during the period of probation or the waiting period, he is convicted of or receives another deferred adjudication for anything greater than a traffic ticket.
A petition for nondisclosure is filed in the court that gave the deferred adjudication probation. Even if the case qualifies for nondisclosure and the proper procedure was followed the judge can deny nondisclosure if she is not convinced that it is “in the best interest of justice.” From filing to order, in Harris County the procedure takes two weeks.
The person who has a conviction or a deferred adjudication probation that is not amenable to expunction or nondisclosure might look into seeking habeas corpus relief. Habeas relief is not handed out like candy, though, and at a bare minimum there must have been some infirmity in the trial or plea that rendered it unconstitutional. Ineffective assistance of counsel is probably the most common ground for habeas relief, followed by involuntariness of a plea.
While nondisclosure can be sought by an intelligent layperson (the forms, including an order that I wrote, are available on the Harris County DA’s website) and expunction by a general-practice lawyer, habeas corpus is a highly specialized field. The determination of whether trial or plea counsel was ineffective, or whether a guilty plea was involuntary, or whether there are some other grounds for relief, requires factual investigation and legal research; the defendant who wants to seek habeas relief should plan to spend more on habeas counsel than he spent on the lawyer who led him into his guilty plea. Competent habeas counsel will charge a fee to investigate the possibility of filing the writ, and another fee for filing the writ based on the favorable results of the investigation.
Most of the time, though, the results of the habeas investigation are not favorable. Most counsel meet the minimal standards of effectiveness required by the law, and most pleas are informed and voluntary. Which brings us to the last possibility for clearing a person’s criminal record in Texas:
I know very little about the Texas pardon process, except that it’s an even more specialized field than habeas, and that pardons are very rarely given. If nondisclosure, expunction, and habeas corpus are not options, the defendant who is willing and able to spend a great deal of money to seek a pardon should call Bill Habern.
Great post, very informative, Mark. Isn’t expunction also available for felonies with a finding of no probable cause, such as a no-bill or (rare) a victory at an examining trial?
Quite right—I count those as dismissals but, in Harris County at least, they can be expunged immediately.
Thanks, Mark. Very nice of you to send me the e-mail telling me I was mistaken and then to do this, But, that is okay. Let’s see if you post this. At least I didn’t try a case in which I asserted an innocence defense on a sexual assault of a child case – essentially calling the complainant a liar but then at punishment I put on a doctor that testified essentially that the client was a pedophile but could be cured. (Can’t remember all the details but that client paid for your mistake with his freedom, or at least more of it than he may have otherwise. . . .)
While I appreciate that I was incorrect in my answer to this person (and I acknowledged it in the response – check it out), there was no need to do this.
Thanks, Mark.
Oh, and BTW, Mike Trent is correct.
Cindy, once again it’s not all about you. I didn’t attach your name to this post; you did. I doubt that anyone would have noticed or cared that you were the author of the incorrect answers on Avvo if you hadn’t made a big deal of it.
I’m sorry it hurts your feelings that I “do this,” by which I assume you mean, “call attention to your Avvo answers,” rather than “inform the public about nondisclosure and expunction,” but Avvo answers are very public.
The case you refer to was tried in 1999. I’ll bet you did some boneheaded things over a decade ago too. We all did.
I’ll also bet that not one lawyer in a thousand would have done what I have done: take responsibility for my mistake then (in the motion for new trial hearing), and take responsibility now, by posting your comment.
Making mistakes and taking responsibility for the harm they’ve caused makes me a much better lawyer than would pretending that I’ve never made mistakes that hurt people.
You did attach my name to this by your links. To say I’m the one that did it is dishonest, Mark. But, well, it just is. Just as you did about your “mistake”, I posted on AVVO that you were correct. The problem isn’t that I was just wrong – I was. (I should have not answered based on misinformation I had without reading the statute. But, the good thing is I have never done a nondisclosure – I refer them all out.) The problem is the way you do things. My pot on information about nondisclosure may have been black, but I owned up to it upon your pointing it out – publicly on the site where I wrote incorrectly. Your “mistake” was far more damaging than mine, & the guy is still paying for it. You just don’t have to be a “I’m smarter than you” shit all the time, Mark. You are not.
Again, Cindy, this post was not about you or the color of your pot. Only your narcissism makes it otherwise. Before you decided to start commenting, your name was nowhere in this post. Nobody searching for your name would ever have found it. Nobody reading would have cared that you were the one who gave the answers on Avvo. Now, you’ve tied your name to it. I don’t know how I can make that any clearer for you.
I’m actually flattered that the worst you can do is keep harping on an error that I made and owned up to more than ten years—two-thirds of my career so far—ago. If there were anything else I could have done to make right what was probably my worst mistake in trial ever, I would have done it, and would do it today. Do you want to keep belaboring the point?
I actually don’t give much thought to who I might be smarter or dumber than, but I get that “you don’t have to be a ‘I’m smarter than you’ shit all the time” stuff all the time from people with low self-esteem. I’m just sayin’.
From Cynthia Henley: While I appreciate that I was incorrect in my answer to this person (and I acknowledged it in the response – check it out), there was no need to do this.
Need has nothing to do with it. Get over yourself. You aren’t the topic of conversation here, your sterling reputation hasn’t been tarnished and no one thinks any less of you due to anything Mark Bennett has published. Actually, there is doubtlessly a whole host of readers who don’t think about you at all – if you hadn’t responded, I’d be included in that group.
My thanks to Mr. Bennett for taking the time and effort to publish this information. Carry on and have a nice day.
Is it wrong that I’m ever-so-slightly amused? It’s nice to see that you stir the pot with an even hand, whether you intend to or not!
I’m here for your amusement.
Great post, Mark. Now if you could tackle the issue of whether or not a jury can recommend to a Judge that a defendant convicted under 12.35 get community supervision. I think the 2005 amendment to Art. 42.12 Section 4(d)(2) still encourages mass confusion. Seems like the legislature attempted to correct the previous anomaly which allowed a jury to recommend probation to a person convicted of aggravated robbery, but not to a person convicted of UUMV. Don’t mean to switch topics here, but I was debating this issue with some lawyers much smarter than I today, and reasonable minds differed.
Never mind. Although the statute remains somewhat ambiguous, I think the legislative intent, expressed through Judge Keel and some of her colleagues, makes it clear that a jury can recommned probation for a person convicted of a SJF.
Wow. Ms. Henley is just drawing so much more attention to herself by commenting so angrily. And repeatedly.
I’m intrigued by the Bennett/Henley brouhaha.
Why is an inconsistent position at trial vs. sentencing some terrible sin in Texas? I understand the problem if the defendant testifies falsely about his culpability, but that doesn’t appear to have happened.
I’m not suggesting that this is a great strategy, but in some cases it may be the best available.
In Texas, where juries can determine sentences, we have to switch gears between culpability phase and sentencing phase often. In the particular case, though, after putting on a strong case for innocence and being rebuffed, hoping that residual doubt would lead the jury to put the defendant on probation would have been a better strategy than putting on the shrink to foreclose all doubt but testify that the defendant was curable.
We all make mistakes. Often, criminal defense lawyers’ mistakes hurt people. I suspect that Cindy Henley has, as a criminal defense lawyer, made mistakes that have hurt people. The mistakes we make don’t define us as much as how we handle those mistakes. I hope that Cindy Henley’s misguided expectation that I would not post her comment doesn’t reflect her attitude toward her own mistakes.
I think Cindy Henley comes across poorly here, but I don’t mind her reminding me of this long-ago error. I’ve never tried to hide it; at the time I did what I could to make it right, including referring the client to a topnotch lawyer who would try to convince the court that my performance was deficient. Unfortunately, he was unsuccessful. I have long since stopped losing sleep over it.
It’s difficult to watch two lawyers I l ike and respect engaged in this sort of public, embarassing mudslinging.
While it was a cheap shot for Cynthia to bring up some decade-plus old mistake, and I agree that her words have not served her well, I must stick up for her on one point. By linking to her post, you essentially DID make it “about her,” Mark. –And simultaneously implied that she was a simpleton for getting her answer slightly wrong, despite that fact that she corrected her error. By contrast, when your significant error-by-omission was (much more gently) pointed out, you said you “count” no-bills and findings of no PC by magistrates as dismissals…an explanation that doesn’t ring true or even make sense.
If the sole purpose of the post was to inform, then there was no need for any link to Cindy’s post or for any editorial comment about how simple the rules are. Again, while it was very informative, the beginning came across as a snide, personal swipe and accordingly drew a big (over)reaction.
I think the discussion, along with potshots at Cynthia from people well outside the situation, has gone on long enough and you should close it to further comments.
In a way, the whole episode illustrates in a microcosm some of the greatest weaknesses and strengths of the parties involved. And in hopes that it does not demonstrate any more of my weaknesses, I will say no more.
Doesn’t make sense? Really? I count no-bills and no-PC findings as dismissals, because that is how the expunction statute refers to them. Would it be snide to suggest that you read the statute before deciding what “rings true”?
The post wasn’t about Cindy; if it had been I would have used her name. Maybe I could have linked elsewhere for examples of lawyers not understanding expunction law, but Cindy’s were the Avvo answers that prompted the post.
I could also have used Cindy’s Avvo answers as examples of the larger problem of lawyers giving incorrect answers on Avvo to get attention, or of the hazards of trying to market yourself on an internet that you really don’t understand (notice that her Avvo answers have keywords—”nondiscloure (sealing) versus expunction of record,” and “early termination of probation”—linking back to her website).
But ultimately you’re right. Since the post wasn’t about Cindy, please, no more comments about Cindy.
Though I am neither attorney nor Texas resident, I would like to point out that it wasn’t just Henley who posted apparently incorrect information on Avvo, but another attorney said she was correct as well. Further, by linking to the post, readers could see that she admitted that he was correct on the answer he gave, which wouldn’t preclude most people from contacting her to do expunctions, and that she further gave another pointer to clarify (indicating she researched after reading his correction). However, for those who vet possible attorneys online, her snitty reply will do much worse.
I am curious as to whether TX has any information available on their government website, such as is available on the site of the Office of the State Appellate Defender in Illinois. If so, adding a link may prevent a deluge of intakes.
It would be snide to suggest that I haven’t read the statute, yes. In fact it might even indicate a patholigical inability to acknowledge one’s mistakes.
The statute doesn’t specifically refer to no-bills at all. The language is ambiguous to say the least since nowhere else is the failure to return a true-bill of indictment referred to as a dismissal. No criminal defense attorney I know of — veteran or otherwise — refers to a no-bill or finding of no PC as a dismissal. They are completely different phenomena since motions to dismiss are the almost-exclusive province of the State and the former are decided only by grand juries and magistrates. Like many Texas statutes written long ago, the wording does not really comport with terms currently in use.
So while you are correct that the statute arguably seems to lump them together, it would also be correct to assume that a person reading your post who had been fortunate enough to obtain either a no-bill or a finding of no PC (or a lawyer representing that person who had decided to use your post as a reference) would walk away thinking they had no right to an expunction.
Only a lawyer familiar with the process would realize that a fairly large category of cases went unmentioned in the post.
If you were truly counting no-bills as dismissals, you could have said as much while still referencing them. You could also simply have acknowledged forgetting to mention them or that you omitted them by mistake. But having slammed another lawyer on her incorrect answers, you really had no other option but to simply claim that you had already “counted” them…which, again, if true, makes no sense to me because it leaves a potentially large class of beneficiaries of expunction law in the dark.
Feel free to blast me if it makes you feel better — it’s your blawg after all and thus you will always be right and always get the last word. But the easiest answer to begin with would have been, “Quite right, I forgot to mention those. Thanks.”
Seriously? If you’re not calling me a liar, you’re taking me to task for not specifically mentioning no-bills. Why? Because you assume that a defendant getting a no-bill wouldn’t think of it as a dismissal.
Broadly, and for purposes of expunction (which statute you almost concede lumps them together), I count no-bills as dismissals. And I think (based on my own experience) that your assumption is wrong—that civilians think of no-bills as dismissals, or at least don’t draw such a strong distinction between the action of one arm of the state and the action of another that they would read the post and assume that a no-bill was not expungeable.
Thanks for your effort to set me straight, though. I don’t think there’s any malevolence in’t.
Mike,
I appreciate your words and agree that I went overboard. I was aggravated with the personal attack and responded in kind, which of course led to further personal attacks and Mark engaging in guessing what I am like as a lawyer and commenting on what he perceives as lack of self esteem and narcissism. (That did make me laugh.) I wish I had never responded to him at all. I know what he is like and I should have expected to be attacked.
Anyway, I appreciate that you said words on my behalf, and I am sorry that such subjected you to being attacked by Mark. As you have seen in his response to your post, Mark is never wrong about anything (since that case, I guess.)
I apologize to you, and to Mark’s readers – many of whom probably do not understand. This is not the place to engage Mark. It only feeds him.
I had told Mark I would not further respond on Facebook after he essentially called me a bitch (or said I was acting like one – he did not like being called out any more than I did apparently), but I felt compelled to apologize and thank you.
So, Mark, respond all you want. I’m sure you will have plenty to say about me and anyone who takes offense or an opposite position from you. It is your blog and you are in control – a position that makes you needlessly aggressive and snide – not your best qualities. Enjoy.
I apologize. Maybe there was someone other than you who would have noticed that you were the author of two of the Avvo answers to which I linked, Cindy. But the post still wasn’t about you.
You think I’ve “attacked” Mike? I haven’t attacked anyone. Unlike you, I haven’t tried to hurt anyone’s reputation. (It must be frustrating to have your plans stymied.)
Since you mention it, here’s what I said on Facebook (in response to your comment, which, I see now, you have—in an act revealing of your character—deleted): “I wonder why it didn’t occur to you that you’d look like a total bitch for harping on [a trial strategy mistake I made a decade ago].”
I like you, Cindy, for who you are, quirks and all. If this had happened on someone else’s blog, I’d have advised you to just let it be—Defending People already shows up at #3 on a Google search for Cindy Henley lawyer. Over the years I’ve said nice things about you on this blog, and tried to give you what help I could with your online reputation.
But you’ve promised not to respond before, and I figure you’ll probably (like any narcissist) be unable to resist responding again. While it’s unfortunate that you should choose to prolong this, as long as you want to keep writing and associating your name with this page in Google’s servers, I’ll keep playing along.
As Mr. Greenfield will tell you, I never click on internal links so I didn’t know it was about Ms. Henley. In fact, I didn’t even read the post (sorry Mark) since it was about expunction and not in my jurisdiction. I started reading it after Ms. Henley posted since that’s when it got good! Wow. This blogging thing is so much more fun than it was in 2004. No one ever called anyone names back then.
Wow. This is one of the most unprofessional things I have ever seen (tongue-in-cheek). But also one of the most real. And, I would never say that I have not slipped into these sorts of battles myself (I have and – unfortunately – more often than I would like.)
What I would like to draw attention to is the fact that we attorneys have personalities, egos and other human traits. We are not an uncaring, unfeeling lot. In fact, as most folks might be able to tell, we still smart over decisions made decades ago – alas, many of us are perfectionistic and will forever fall short of that perfection which we seek.
I hope that folks – laypersons like the one individual from Illinois – who stop in to read Mark’s blog will take that away – that lawyers are human too, fallible and subject to disagreements (some quite vociferous). I think that is because the law is imperfect and constantly in flux and we lawyers are always struggling to get it right.
To Mark and Cynthia may I please say that regardless whom the post was aimed, this has been a very informative debate. I thank you both.
Mark, you lead one interesting life! If I had it to do all over again, I would study law, instead of Music Education! I get a kick out of your blog.
Not being a lawyer, I was interested in the content you posted and never would have followed that link had Ms. Henley not made a big deal of it. So no, I didn’t see you as “outing” her. Her reply did seem a tad vicious. I doubt she and I would be simpatico in a lawyer/client setting.
Expunction is available after the statute of limitations has run if the case was dismissed.
Assuming — as could be the case; I dunno — that there’s no statute of limitations on murder, does this mean that a person indicted for murder but where the charge was dismissed (on the grounds, say, that a late-breaking video shows that somebody else did it) can’t get his arrest expuncatarized (or whatever you call it)?
No. Expunction is also available after a dismissal if “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.”
Mark, Cindy, you crazy kids. Get a room.
One thing non-criminal-defense-lawyers might not get about criminal defense lawyers: we fight.
When there’s no common enemy handy, we fight each other, sometimes just for sport. Then, when it’s time to get back to business, we get over our bruised egos and fight together.
It’s just what we do.
A swing and a miss, Mark. I am a criminal defense lawyer.
I just saw two things: incredible pettiness, and sublimated passion.
Don’t make me pick sides as to either who started it, or who is right, because I’d have to agree with you.
When we make ad hominem arguments against our brothers and sisters in the struggle, we give our opponents and critics grist for their mills.
Fight. Fight like hell, but it serves us no good to do it here. Lively discussion on points of law, certainly, but the above was far from that. Sad, actually.
I didn’t mean to suggest you weren’t a criminal defense lawyer. My comment, like your wry one to which I was responding, was more in the nature of commentary on the limited significance of the fight here. We fight passionately, then we get over it.
If anyone is habituated to getting his teeth kicked in and getting back up, it’s a criminal defense lawyer.
By the way: ad hominem doesn’t mean “personal.” It’s a specific sort of argument. “Cindy is a narcissist” is just mean; “Cindy is a narcissist, and therefore wrong” would be an argumentum ad hominem.
Ms. Cindy Henley,
I assume by your post youre a very young lawyer, and its very obvious that you’re insecure by your lack of knowledge. Mr. Bennett was simply pointing out facts, seriously it had nothing to do with you and it had nothing to do with a mistake he made long ago, so for you to respond in this manner is ridiculous and immature. You should be happy he taught you something, now go play with your dolls.
Hi,
I had a question. When I was 17 in 2007 I ended up with a PI, failure to ID, and minor in possession of tobacco (deferred). All of these are class C misdemeanors and because my parent’s paid the fine there is nothing I can do to take it off. I never saw a judge, received legal counsel or anything. I remember a officer at a window giving me a paper and telling me to pick either :guilty, not guilty, or non-something. I was confused and asked what do I do with this paper and he said well if you did it check guilty. I was young and dumb.
I’m now an RN and want to apply for grad school but this is what the background check company says: ” Once all counties of residence over the past seven years have been identified, a direct search of each county’s courthouse is conducted.”
I was told by a lawyer that when he was looking my stuff up on the DPS nothing came out he said it stays in the city. My question is will county show my record? Is there anything I can do to make this go away? Perhaps nondisclosure?
Thank you.
Not enough information. Hire a lawyer in the appropriate jurisdiction to investigate it for you.