Given the general stance of the legislature on criminal justice issues it might surprise you that they enacted some changes that are actually beneficial to those who have been caught up in the criminal justice system. One of those areas is Expunction, which addressses those situations where someone was arrested but the charges were either dismissed or never filed.

There have been problems in those situations where a person is arrested and charges are never filed. The courts have required individuals to wait until the statute of limitations expires before applying for an expunction. In cases where there is no statute of limitation – such as murder – you could never have your record cleared. There are also charges with lengthy statutes of limitation, such as most sexual assaults.

The legislature basically set up waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors, and 3 years for felonies. The burden is on the applicant to prove that they were released, and that charges are no longer pending.

As you would imagine, the legislature is not going to tell the State to close their file and destroy all the records The order granting expunction must authorize the State to retain their records and files.

Another change is what can be termed a discretionary expunction. Previously, any agency listed in the petition could oppose it. DPS did that fairly regularly, which is why a lot of expunction cases have the Texas Department of Public Safety as a party. Under the new statute the prosecutor can agree to an expunction. Of course, a court must still sign the order, and might refuse to do so if there is opposition. This change could be significant in those cases where it is obvious no charges should  have been filed, and the individual should not be forced to wait.

One other change removes the restrictions on prior felonies. Previously an individual could not receive an expunction if they had been convicted of a felony within the previous 5 years. That has been removed.

There is no doubt these changes are positive, and are going to allow a significant number of individuals to obtain expunctions who otherwise could not do so, or would  have to wait for significant periods.  If you feel like this would benefit you contact a lawyer and discuss it.