Am I Eligible for an Expunction?

August 29, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I get asked this question a lot by people that went through the system years and even decades before they come to see me.

Texas Code of Criminal Procedure Chapter 55 governs expunctions.  It can be fairly complex in spots, but as a general rule you’re entitled to an acquittal on a Class B Misdemeanor or above if you’ve been tried and acquitted of the charges.  Also, you’re entitled to expunction where you were arrested for a misdemeanor or felony offense and never charged by indictment or information and the statute of limitations has passed.  On Class C Misdemeanors you’re generally entitled to expunction if you are placed on deferred adjudication and there is no community supervision ordered but there are exceptions.

Several Class C offenses can be used to enhance crimes in the future.  An example is with a Class C assault with a family violence allegation.  Even though it’s a Class C punishable by a fine only, a second offense — no matter how small — can be charged as a felony!

Other conditions of an expunction are that you are not subject to prosecution for anything else regarding the criminal episode which is the subject of the expunction and you can’t get an expunction if you were convicted of a felony offense within 5 years of the date of the arrest you are trying to get expunged.

Often people don’t know exactly what happened with their previous case.  Finding out the legal result should be done prior to seeing a lawyer.  Also the laws on expunctions change frequently so you may not want to assume you can get something expunged later because you never know when the Legislature and/or Governor in Austin will snatch that right away from you!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should consult an attorney directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Charges Where You Can’t Get Deferred Adjudication in Texas

April 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Deferred adjudication is where you plead guilty but the judge does not actually find you guilty.  Instead they defer that finding while you are placed on probation.

Deferred adjudication is available on many criminal charges in Texas but not all.  Most people are familiar with deferred for traffic tickets but the truth is the concept is far more expansive.

Virtually every offense in Texas is legally subject to deferred with the exception to DWI offenses, (Tex.Pen.C. 49.04 – 49.08), capital offenses, certain sex offenses, and certain repeat offenses (typically sex offenses or selling drugs in drug free zones).  Texas Code of Criminal Procedure section 42.12 Section 5 governs deferred and it’s availability.

As with which cases a person may receive community supervision, in certain situations for deferred, the statutory scheme gets tricky and you should consult an attorney if you have any questions.

I have discussed in previous blawgs the other pros and cons of deferred here, and here.  Never assume that by pleading guilty (or nolo contendere) and getting deferred that your criminal record will be unharmed or will undo itself.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered leal advice.  For legal advise specific to your situation you should directly consult an attorney.

1 Comment | Expunction & Non-Disclosure, Uncategorized | Tagged: , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Petition for Non-Disclosure

March 15, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A Petition for Non-Disclosure is an intermediate tool used to clean someone’s record.  It essentially hides your record from the public.  It is not as sweeping or as beneficial as an expunction, but it can lessen the blunt force of a conviction.

The Non-Disclosure statute is very complicated and is loaded with qualifications and exceptions.  What it means, in general, is that your criminal record stays intact (unlike an expunction where an arrest record is destroyed), but the state is limited in it’s ability to disseminate the information of your record to the general public.  As you can see by reading the statute, there are numerous agencies which are exempted from honoring the non-disclosure (such as professional licensing bodies), and there are tons of offense which don’t qualify for non-disclosures (such as sexual assault, stalking, and family violence affirmative findings).

Here is how it generally works:  If you plead guilty and are placed on deferred adjudication, you may be eligible to file a petition for non-disclosure two years after the date of your Tex.Code.Crim.P. 42.12(5)(c) dismissal on misdemeanor cases and five years after the dismissal of your felony.  Your petition is discretionary meaning the prosecution can fight it and you must prove to the judge that granting it is in the best interests of justice.

The code was recently amended to allow for immediate non-disclosure of most misdemeanor offenses after successfully being discharged from deferred adjudication.

The benefit of a petition for non-disclosure is that your criminal record shouldn’t be readily available to private companies that do general background searches.  The downfall is that they can be challenging to get and even though the information s difficult to attain, it hasn’t been destroyed as with expunctions.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should always consult an attorney.

1 Comment | Collateral Consequences of a Criminal Record, Expunction & Non-Disclosure, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

The Top 5 Reasons for Getting an Expunction

March 11, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Assuming you are eligible for expunction from an arrest in Texas, here are the top 5 reasons to get one if you can.

#5 — Peace of Mind

When I ask people about prior criminal records, I often get blank stares followed by an explanation that is very unsure of the final outcome.  With an expunction, you get the certainty of knowing your status and how to deal with it in any given situation based on what you know is the law and your rights.

#4 — Future Dealing With Law Enforcement

Prosecutors and police officers look at your life through a straw… meaning they don’t care about how many old ladies you’ve helped cross the street in your life.  If you got arrested 18 years ago and “beat the rap” then they make it their business to nail “career criminals” like you!  Without an expunction, that arrest will be seen by law enforcement.  To many of them that prior arrest is as good as a conviction.

#3 — You Never Know When It Will Come Back and Bite You

People can dig into your personal history for all sorts of reasons.  Though law enforcement’s databases tend to be off limits, they sell your information to public information firms who in-turn sell that information to consumers.  Also your court case is a public record and anyone can view it if they are motivated enough for any reason.

#2 — Future Employment

Employers will run your criminal history.  Even if you’re acquitted or the case dismissed, the arrest is still in all the databases of law enforcement unless and until it is expunged.  Having to make your case all over again to your employer about how the charges were incorrect is a losing battle.  Do you think the other candidates interviewing have to explain warts like that?  Not expunging an arrest can cause people jobs.

#1 — Why Wouldn’t you have an Arrest Expunged?

There aren’t any good reasons not to get an expunction when you’re eligible.  The legislature has put mechanisms in place so if you apply for expunction quickly after acquittal (within 30 days), the expenses are minimized.

 

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice please consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

What is the Difference Between Pleading Guilty and No Contest in Texas?

February 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Under Texas law — pleading “no contest” (or sometimes called “nolo contendere”) feels better than pleading guilty and that is about it.

Many people think that if they plead “no contest” that they’re not being convicted or being placed on deferred and that nothing will go on their criminal record.  This is not true and the wording of the plea is nothing more than a legal mechanism which alleviates the state from their burden of proof beyond all reasonable doubt.  If the judge accepts a plea of guilty, or no contest — they are legally empowered to find you guilty (or place you on deferred) with no additional evidence.

The lone narrow difference is that if you plead “no contest” to an offense in Texas, and if there is a civil case where the criminal case is of significance, a “no contest” plea might not be admissible in that proceeding.

Due to the fact civil cases have even lower burdens of proof than criminal cases and usually settle before trial anyway, “no contest” pleas are somewhat irrelevant to a lawyer’s analysis of your criminal case.

All-in-all the biggest issue with “no contest” pleas is that it can leave a false sense as to the outcome of the case.  The only way to erase a criminal record in Texas is through an expunction.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should consult an attorney.

1 Comment | Expunction & Non-Disclosure | Tagged: , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.