Criminal

Expunction Petition Requirements

The things you’re going to have to have in your petition: name, sex, race these are all in the statute and you can look in up later. Just all the person’s vital information case number in court, and then you need to have the DPS tracking number. Now, tell the truth; who knows what a DPS tracking number is?

ok. Right on. Let’s talk about what the DPS tracking number is. A tracking number is assigned by DPS to every custodial arrest. So, whenever somebody gets arrested and taken down there is a tracking number assigned to that. And the statute requires that you have that tracking number in your expunction petition in order. The places that these tracking numbers exist are; you can get it, sometimes it’s on the warrant so you can get it from the clerk’s office, sometimes at the jail who always keeps a record of it, so you can get through an open records request from the jail. The only other place it exist is on your clients criminal history information so they can go down give their fingerprints and get their criminal history information and that’s going to have that tracking number on there.

It is imperative that you put these tracking numbers on these guys. And the reason for that is; if you don’t include it, then it gives DPS an excuse to trigger cases and ‘no records’ filed. ‘no records’ means that you do your expunction the court grants it, the clerk sends it off to DPS and they look at it and they say,” we don’t have any records on this person. and one of the reasons they do that, and this is straight from the horse’s mouth at DPS, their policy is that if you don’t have the tracking number on there and your arrest date is more than 24 hours; they’re going to consider that a no records case.

And what that means is, is that your expunction is not going to go through and here in a minute we’re going to see why, your, why that’s much worse than even it sounds. ok so, you want to have in your petition the reason why the person’s entitled so, just say the indictment information was presented and dismissed, there was no final conviction, no probation, limitations period has expired or whatever other the reason, the other reasons are. And of course, you need to have the list of entities. All of the law enforcement, the arresting agency, the clerk’s office, anybody you can think of and you really need to think outside the box on this; for what agencies may have this information.

some of your bigger counties are going to have like a separate IT department which backs up all the files from the actual law enforcement systems so those are just an example of places that are going to have these records that just may not be intuitive so the best practice to figure out what kind of entities you have in a given jurisdiction are… what I do is I go to the clerks website and find out what all the departments in the County are and then if you really want to get hardcore about it is to do an open records request and who they sell to. See who these state agencies, who they sell information to or who they transfer information to and that’s going to give you an idea of how their paper trial goes. Now, it also says to list the federal depositories of criminal records.

The town is on DPS to notify the feds after the case’s been expunged. so you don’t, it says to list it in there and you can do that, but really the effect of the order is the DPS has to notify the federal government and then the dreaded private entities; the background check companies that just flourish like fungus. And there’s no way you can cover every single background check company you know. I mean all it takes to start a background check company is to buy a database from somebody else and put up a website. So, what I’ve done on this is the private entities that I include in mine are a list; I just attach a list as an exhibit. It’s about a first 10 pages of Google or so of popular background check companies and then also the background check companies the DPS sell to. So you want to have all those in there. And the last thing you need to have is a verifying affidavit from your client; just saying everything in that perdition is true and correct.

I also think it is best practice just for you to put a clause in there for reasonable efforts to be made. And this is the thing that’s going to cut down on that; no records policy. What I always have the judge ordered is; that any entity who’s getting this expunction within 60 days they have to notify the court if they determine they’re not going to comply with it. And this is not an expansion of the statute; this is just the old rule that, a court can enforce its own orders. so, by putting that clause in there I’ve some judges raise eyebrows and cross it out and everything but if you’re not doing something to show the agencies that you’re going to stay on them and make sure that they actually do this and have some kind of enforcement mechanism on that, then it’s going to be a lot easier to ignore you.

And then I also put a catch on privet entity. so, what I put in there is; any entity that purchases information from DPS, anybody who’s ever applies to purchase information from DPS, the private entities that have notified DPS that they have sold the information to anyone else and then entities who DPS has noticed that it was sold to. So that’s pretty comprehensive to make sure that everybody, the DPS can notify gets notified of the expunction. And then, as far as the list of private entities, you do have to have the facts and email addresses of these places. And a lot of them intentionally make it difficult to do that. So, it does takes a little bit of leg work to get all that information. But DPS will notify everybody on that list. But if you don’t have a list attached, then DPS is only going to notify the people they’ve sold to.

Another pro tip; use the initials of your client in the style. don’t use their full name and the reason for that is; if your expunction is denied there’s going to be a record of their full name on there. So if you ever looked at like a expunction case law… who knows who Judi Beem is? Judi Beem was the lady who… expunction cases go up to the court, to the Supreme Court, not the court of criminal appeals coz it’s a civil case. Well, Judi Beem case was one of the ones that were heard by the Supreme Court and basically in that case they said that Mrs. Beem has to wait until the statute of limitations ran, even on a Class C misdemeanor.

Well, my point on this is; Judi Beem didn’t expect that people were going to know her name. Ok? When she went in for her expunction. And so what you should do is, but I mean she’s famous now! and all she wanted do was get her case dismissed so, when you’re doing an expunction you put the person’s initials in style so that if it gets appealed, they’re not going to live on forever in the South Western reporter. And make sure you have the current statutory language. a lot of, too many of us are using forms that we got from the other lawyers or from the law library, and you know expunction law, it changes with the legislature but it also changes you know just with, at the whims of the courts of appeals. So just make sure that you don’t have any kind of outdated or extraneous language in there or the court could very well deny you. You want your petition to be as bullet proof as possible. So just track the statute if at all possible.

Ok, so the filing procedure’s pretty straight forward. You just file it at the district clerk. Some courts are going to require you to have a copy for each agency, some courts are going to require you to notify each of the agencies themselves. So that’s going to vary on your jurisdiction. and at the hearing your client may or may not need to appear at the hearing, but if there’s any question that you’re going to have to prove up to your pleadings, make sure your client is there. Because the verification that your client signs that is not enough to prove it, if they, at the hearing. So, what you want to do is make sure that your, you’re not going to get any opposition, so you just kind of gauge opposition from the date before the hearing. Talk to the state. now the Texas rules of procedure to apply to expunction and so, we don’t get, they’re don’t give you whole lot of solace, you know you can talk to the counsel for the state to see if they’re going to come in and answer at the time. They’re supposed to file an answer within 20 days plus Monday but… does anybody know a judge that does going to file a default expunction order? Against the state? Now, I don’t either so, so they’re supposed to follow those rules but the state can just show up and oppose you at the hearing. And you want to make sure that’s not happening, if you can cut it off.

And then just, like I said; have your client there and be prepared to prove up those pleadings. And make sure you get 2 certified copies of those. One for you to keep when your clients copy dies in the fire. I’ve even have that happened already! So make sure, and important thing about this is; you got to have a copy of that because an expunction gets, an expunction is destroyed on the year anniversary of the hearings. So, if you don’t keep a certified copy of it, you’re not necessary, you’re. If your client needs to prove later on that they have an expunction done, they’re not going to be able to do that by getting a copy from the clerk. So, make sure you keep that. The fact of the order is that the use the records for any purpose prohibited, the petitioner may deny the arrest, the occurrence of the arrest and the occurrence to the expunction in every case except from one. And the only time they can’t deny it is if; they’re under oath in a criminal proceeding, they can say or anybody else on their behalf’s can say the only that the matter was expunged. Now this they may say that it was expunged. That doesn’t includes somebody who remembers what happens from testifying from about it. But if the person wants to all they have to say is; that matter was expunged after it’s been completed.

Francisco Hernandez

Author Francisco Hernandez

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