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Five Expunction Qualifying Events in Texas

Thumbnail image for civil law.jpegIn golf, the follow-through is just as important as the swing. The same is true in other sports, like football and baseball. In Texas criminal law, expunction is normally the follow-through to a successful resolution.

Unless defendants expunge them, the criminal charges linger on their records forever. Many people, including employers, landlords, and other people who have access to criminal records, do not understand how the justice system works. They do not know the difference between a charge and a conviction. At the very least, former defendants must spend time and effort explaining away the criminal record when it comes up.

Texas has extremely broad expunction laws. Regardless of the type of case, even if it is DWI, a sex offense, or even murder, the case is expungeable in the following circumstances.

Void Information or Indictment

These documents are the primary charging instruments in Parker County criminal cases. Sometimes, the charging instruments are defective. For example, there may be a fatal variance between the pleadings and the proof. Sometimes, drug indictments specify the wrong substance or theft indictments name the wrong owner. In some cases, prosecutors may be able to amend defective charging instruments.

Other times, the indictment or information is void. It's impossible for anyone to amend them. Typically, charging instruments are void because the statute of limitations has expired on the crime or the document fails to allege all the elements of the offense. A Weatherford criminal defense attorney may be able to find other grounds as well.

On a similar note, if the statute of limitation expires and no charges are presented (e.g. filed with the clerk), the defendant can have the record expunged. That's assuming that no felony or other charges were brought. Those charges must be related to the unpresented charges.

Pretrial Dismissals

Not all dismissals qualify for expunction. Many times, prosecutors dismiss cases because they do not have enough evidence to prove guilt beyond a reasonable doubt, there is a procedural defect, or they simply do not have enough time to deal with the case.

Under Texas law, only dismissals due to "mistake, false information, or other similar reason indicating absence of probable cause" qualify for expunction. Some examples include a search warrant with the wrong address, a drug case with no illegal substance (the marijuana-CBD Oil debate may fit into this category), identity theft, or an arrest based simply on suspicion or guilt by association.

Executive Pardon

Clemency is easier to obtain than many people think. Such relief is not limited to rich donors or political allies. In fact, it's harder for these people to obtain pardons. No governor wants to be accused of favoritism.

Many times, people do not get pardons because they do not ask for them. If the case has some political overtones that jive with the current governor's political agenda, and the defense attorney knows the right way to present the application, there's a good chance the governor will grant the request.

Some Juvenile Offenses

The state does not automatically seal or expunge juvenile records when the former offender turns 18. In fact, in some cases, it's not possible to seal or expunge these convictions at all, unless they qualify under some other provision.

Generally, nonviolent juvenile crimes, like failing to attend school or MIP (Minor In Possession of alcohol), are expungeable regardless of the circumstances.

Not-Guilty Verdict

Significantly, there is a difference between "not guilty" and "innocent." The defendant simply has to be not guilty as far as a judge, jury, or appeals court is concerned. The basis for that verdict could be something substantive, a technicality, or simply jury sympathy. All these results are expungeable.

Again, expunction or sealing is not automatic in these cases. The charges remain on the defendant's permanent record until they are erased.

Expunction helps former defendants take full advantage of a favorable result. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. After-hours visits are available.

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