By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Time to crow a bit.
I won a trial roughly two or three years ago where my client was charged with the felony offense of aggravated assault with a deadly weapon.
After we won, we filed (what we thought) would be a routine petition for expunction clearing my client’s record of the arrest for which my client had been acquitted. The DA’s Office and The Texas Department of Public Safety opposed our petition because my client had also been arrested for outstanding warrants on an unrelated case which occurred prior to her arrest for the aggravated assault.
The prosecution’s theory was the arrest could not be expunged because the arrest for the underlying warrants made the arrest good under the expunction statute… so she’d have to live with the arrest for the aggravated assault with a deadly weapon on her record forever even though she won her trial. (This is highly nerdy lawyer stuff — so I’m paraphrasing a touch.)
The prosecution’s idea of the expunction statute before our case had governed their policies and practice statewide — that if you don’t qualify for any small part of this long statute then you’re out of luck. They argued the record keeping of criminal records for DPS would be too difficult and too sloppy.
After I convinced the trial judge in the case to order the records expunged over the State’s objection (no small task), the State appealed to the 5th Court of Appeals in Dallas and then to the Texas Supreme Court. Special thanks to Thad Spalding and Morgan McPheeters from the firm of Kelly, Durham & Pittard in Dallas who handled the case after it left the trial court and briefed and argued it from the 5th Court in Dallas to the Texas Supreme Court.
Last week the Texas Supreme Court affirmed our case yet again, making it the law of the land. Now when someone applies for expunction the test is whether they qualify under the specific provision of the expunction statute and not the statute as a whole.
It punches a hole in the decades-old practice of prosecutors and DPS that the expunction statute was “arrest based.”
You can read the opinion here.
Yeah, it’s nerd stuff. I know. But it can be fun to be a nerd sometimes!
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.