Criminal

The Difference Between an Order of Non Disclosure and an Expunction

Now, Let’s talk about kind of the difference between expunction and non-disclosure. Expunction is available when a person has been acquitted, or their case has been dismissed, or they’ve been given some kind of a pardon. And an expunction is available in no situations and the paper records that the agencies have will be destroyed or returned to the court. So, you can expect that you’re either going to get the paper record that the agencies actually have or certification saying that those records have been destroyed. All the computer index references which are much more important now a day than the paper records those are all removed, so that they will not be available to anyone including law enforcement or supposedly the federal government we’ll get into that later. And the person can deny the arrest in all but one circumstance; we’ll get into what that circumstance is in a bit. But expunction is properly thought of in terms of entitlement not eligibility.

The expunction statue is exclusive meaning that if you; if a person meets all of the conditions of the expunction statue then they’re entitled to an expunction. The court has no acquit able power to grant or deny an expunction as long as a person does meet all the qualifications of the statue. When we’re talking about an expunction we’re not begging the court to; oh this guy, he’s really, his case got dismissed so let him have, not let anybody know about it. No! He has been found legally innocent as innocent as somebody who is never charged and he is entitled to [inaudible] the law! So it’s not something you’re eligible for, it’s what you’re entitled to.

Now, non-disclosure is something that a person can become eligible for and the only time you’re eligible for that is when you have successfully the time of deferred adjudication probation. In these situations the records are still retained by the agency. So, nothing goes away, nothing is being destroyed. All the records remain intact but the agencies are prohibited from revealing it to the public any further. So, law enforcement and many of the state agencies that are numerated in the statute and licensing bodies are still going to have an access to this but, the general public will not. Now one thing, one misgiving, I always had about non-disclosure is when you do an expunction, the records are gone, so you don’t have to worry about it anymore. When a record is sealed, it could always be unsealed. Never heard any movement at the legislature to re-appeal the non-disclosure statue but it could be done. So you got to let your clients know all this information is still out there and could be unsealed, if by legislative action. And it only applies to the information that’s actually the subject of the deferred adjudication not necessarily everything that’s involved, arises from the arrest. We’ll talk about that in a bit too.

So, flavors of expunctions! The one that trial lawyers are most familiar with is the acquittal expunction. And on an acquittal after your client is acquitted on request of the defendant, it is mandatory for the court to order expunction. There is no petition required, it’s just the defendant has to request it. And you may think,” why would somebody not request an expunction after they’ve been acquitted?” well, if it’s a case where they’re actually innocent, they’ve got some kind of claim against the state then you’re not going to want to destroy all those records before you get your relief.so it does have to be requested but as soon as it is requested it is required and has to be filed within 30 days of the acquittal. And when it’s done in the case of an acquittal, the petition or the order rather is supposed to be prepared by the trial counsel. So when you go in, for your case and you’re expecting an acquittal then have that ready. And you really should have that ready in every case, your order for expunction if you think that it may go that way.

Now, that’s supposed to be prepared by ya’ll but if it’s a pro se defendant then the state is supposed to do it. And that’s always kind of conjured up a funny image in my mind of the prosecutor who just loses a trial to pro se defendant probably like a republican Texas guy or you know retire and has nothing better to do and so not only have they lost the case but then they have to do the expunction. You know it’s kind of funny to me.

Francisco Hernandez

Author Francisco Hernandez

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