I think this is good news, but I need an interpreter
Trina from the Texas Court of Criminal Appeals got back with me and seems to think we have a case for expunction. It's kind of hard to say because I don't know what the statute of limitations IS on Felony Indecency With a Minor, and it's going to be all kinds of hell finding out all the information they need to do this.
Scary thing is that if the statute has NOT expired, the state could start this whole thing over again. OMG, anything but that.
So this is what she said:
****
Depending on a few factors, it looks to me that y'all really do have a right to expunction.
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Texas Code of Criminal Procedure 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:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(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;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest
-------------------------------------------
Larry is entitled to expunction if he can show the court that:
* the grand jury never presented an indictment (fulfilled, b/c it was no-billed)
* the statute of limitations for the offense has expired (reason, so the State won't be able to present to the grand jury again...unknown b/c don't know what offense he was charged with or the age of the complainant at the time of the offense - age of the complainant is really important here) ETA: The charge was Felony Indecency with a Minor, the complainant was 12, and the year was 1992, so 14 years have elapsed.
* He was released (is not incarcerated on the charge) and there has not been a final conviction and there is nothing pending on the charge/offense
--------------------------------------------
The Procedure: Texas Code of Criminal Procedure Article 55.02
Sec. 2. (a) A person who is entitled to expunction of records and files under Article 55.01(a) or a person who is eligible for expunction of records and files under Article 55.01(b) may file an ex parte petition for expunction in a district court for the county in which:
(1) the petitioner was arrested; or
(2) the offense was alleged to have occurred.
(b) The petition must be verified and shall include the following or an explanation for why one or more of the following is not included:
(1) the petitioner's:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver's license number;
(F) social security number; and
(G) address at the time of the arrest;
(2) the offense charged against the petitioner;
(3) the date the offense charged against the petitioner was alleged to have been committed;
(4) the date the petitioner was arrested;
(5) the name of the county where the petitioner was arrested and if the arrest occurred in a municipality, the name of the municipality;
(6) the name of the agency that arrested the petitioner;
(7) the case number and court of offense; and
(8 ) a list of all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state and of all central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction.
--------------------------------------------------------
The trial court is supposed to set a hearing on the matter no sooner than 30 days after the ex parte petition is filed. The information contained in the petition is pretty self-explanatory, but I'm not sure if I'd try to take care of this pro se. However, if you decide to go that direction, you could call the district clerk's office to see if they have any "forms" for expunction. Also, I know that in Bexar County (where I practiced before coming to Austin), you could call the county legal aid office and they would refer you to two or three attorneys who handle that type of case.
I hope this helps you. When I read your original post, I was just so incensed. It just makes my hackles rise when good people get yanked around by the system. And I apologize if it's a jumble of legalese. If you have any questions, please feel free to PM me.
***
I don't really know where to start, but by tomorrow my brain should be less cluttered. One would hope, anyway.
Scary thing is that if the statute has NOT expired, the state could start this whole thing over again. OMG, anything but that.
So this is what she said:
****
Depending on a few factors, it looks to me that y'all really do have a right to expunction.
----------------------------------------------
Texas Code of Criminal Procedure 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:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(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;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest
-------------------------------------------
Larry is entitled to expunction if he can show the court that:
* the grand jury never presented an indictment (fulfilled, b/c it was no-billed)
* the statute of limitations for the offense has expired (reason, so the State won't be able to present to the grand jury again...unknown b/c don't know what offense he was charged with or the age of the complainant at the time of the offense - age of the complainant is really important here) ETA: The charge was Felony Indecency with a Minor, the complainant was 12, and the year was 1992, so 14 years have elapsed.
* He was released (is not incarcerated on the charge) and there has not been a final conviction and there is nothing pending on the charge/offense
--------------------------------------------
The Procedure: Texas Code of Criminal Procedure Article 55.02
Sec. 2. (a) A person who is entitled to expunction of records and files under Article 55.01(a) or a person who is eligible for expunction of records and files under Article 55.01(b) may file an ex parte petition for expunction in a district court for the county in which:
(1) the petitioner was arrested; or
(2) the offense was alleged to have occurred.
(b) The petition must be verified and shall include the following or an explanation for why one or more of the following is not included:
(1) the petitioner's:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver's license number;
(F) social security number; and
(G) address at the time of the arrest;
(2) the offense charged against the petitioner;
(3) the date the offense charged against the petitioner was alleged to have been committed;
(4) the date the petitioner was arrested;
(5) the name of the county where the petitioner was arrested and if the arrest occurred in a municipality, the name of the municipality;
(6) the name of the agency that arrested the petitioner;
(7) the case number and court of offense; and
(8 ) a list of all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state and of all central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction.
--------------------------------------------------------
The trial court is supposed to set a hearing on the matter no sooner than 30 days after the ex parte petition is filed. The information contained in the petition is pretty self-explanatory, but I'm not sure if I'd try to take care of this pro se. However, if you decide to go that direction, you could call the district clerk's office to see if they have any "forms" for expunction. Also, I know that in Bexar County (where I practiced before coming to Austin), you could call the county legal aid office and they would refer you to two or three attorneys who handle that type of case.
I hope this helps you. When I read your original post, I was just so incensed. It just makes my hackles rise when good people get yanked around by the system. And I apologize if it's a jumble of legalese. If you have any questions, please feel free to PM me.
***
I don't really know where to start, but by tomorrow my brain should be less cluttered. One would hope, anyway.