How a Reduced Charge Affects Your Right to Expungement

August 10th, 2017 by Tad Nelson in Criminal Defense

Expunction (or expungement) is a process that allows you to seek removal of records related to an arrest or criminal charge that did not result in a conviction. Under Texas law, expunction is not a right, but a privilege conferred by statute and granted at the discretion of a judge. And unlike a criminal trial, where the prosecution must prove you guilty beyond a reasonable doubt, in an expunction proceeding the burden is on you to prove that you meet the statutory requirements.

Expungement Not Available for Defendant Who Served Probation for Misdemeanor

Earlier this year, an appeals court here in Houston addressed the question of whether a person is eligible for expunction if they were initially accused of a felony but later entered into a deferred adjudication on a lesser charge. In this particular case, a judge actually granted the applicant’s request for expungement. But the Texas Department of Public Safety appealed, arguing the judge’s decision was not supported by the law.

The applicant was originally indicted by a grand jury in 2015 for “criminal mischief,” which refers to intentionally or knowingly damaging someone else’s property. Prior to trial, the prosecution and the applicant reached a plea agreement. The state dismissed the original indictment–which was for a state jail felony–and instead filed a new charge that was only a Class A misdemeanor. The applicant then pleaded guilty to the misdemeanor, and the judge “deferred the proceedings without an adjudication of her guilt.”

With deferred adjudication, a defendant serves a period of community supervision (probation), and if she complies with all of the conditions specified by the judge, the court will then dismiss the original charge. However, when a court orders any term of community supervision for a Class A misdemeanor, the defendant legally cannot seek expunction of the record.

In this case, it appears the trial court expunged the record of the original state jail felony charge, which did not result in a conviction, even though the applicant served a term of community supervision for the subsequent misdemeanor. The Texas First District Court of Appeals found this decision problematic and reversed the trial judge’s decision to grant the expungement. Traditionally the courts have taken an “arrest-based approach” to expunction, the First District explained, meaning that if the defendant is ultimately sentenced to probation on any charge arising from a particular arrest, she cannot have the record expunged. To put it succinctly, “if expunction is not available for all charges stemming from an arrest, it is not available for any of those charges.”

Need Help Getting a Criminal Charge Removed From Your Record?

The main purpose of expungement is to help ensure that a mistaken arrest does not unfairly leave someone with a criminal record. If you need help clearing your record, you should speak with a qualified Texas expungement lawyer as soon as possible. Contact the Law Offices of Tad Nelson & Associates if you live in Houston, Galveston, or League City and need legal assistance today.

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