Criminal

Expunction after an Acquittal or a Pardon

Then there’s, if a person is acquitted by that’s a trial court acquittal we’re talking about. So, if a person is acquitted by the court of appeals or the court of criminal appeals you do the same process as you would at dismissal and we’ll get to dismissal here in a bit. That’s the one you’re going to run in to mostly. If the person is found actually innocent, it’s also mandatory there’s no petition on that. And it also has to be filed within 30 days of the date that the court receives notice of if it’s an actual innocence pardon or other grant of relief; somebody is exonerated after a hearing. The state prepares the order on an actual innocent. Now, when I talk about, when the owner is on the state to do an expunction, you’re going to want to help them out on that. I mean, the priority on an expunction at the DA’s office, there’s a lot sexier things that are going in the DA’s office than expunction. So, if you have a situation where your client is entitled to one, you want to keep an eye on then and help the state out as much as you can. I mean I’ve written petitions for like for example; identity theft expunction that is just going to languish on a prosecutors desk if you don’t really help them along with it. So, and then the, also in actual innocence, like I was talking about before, or if there’s a civil suit, the court is going to retain the documents until the Statue of limitations runs for the civil case.

Now, if there’s a pardon that does not involve actual innocence, it’s going to be the same procedure as a dismissal. And there’s also a procedure for a posthumous expunction. And that is one of the provisions of the Tim Col. Anybody remembers Tim Col? He died in prison after being convicted of a rape; I believe it was in Lubbock after serving about 25 years in prison I believe. He died in prison, he was later exonerated by hearing that our own Charlie Bird in Austin did for him, they wouldn’t have that hearing for him in Lubbock but we got it done in Austin. And, so after that happened there was no provision for him to have that expunge so the legislator in the next year made that provision for a posthumous expunction and that can be filed on by a close relative on behalf of a deceased. And you’re going to do that like you would on a dismissal or an identity theft.

Francisco Hernandez

Author Francisco Hernandez

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