The law in Texas never intended that persons who were arrested but never convicted have their records stained for life. Background searches are cold and matter of fact. They do not clarify or explain injustices. In a very competitive job market, a record of arrest or prosecution in one’s background may be perceived negatively.
Generally, the following factors must be involved, among other things to successfully apply:
1) Case dismissed by prosecutor and accepted by the court.
2) Case dismissed by prosecutor and accepted by the court following the successful completion of a pre-trial diversion program.
3) Not guilty verdict at trial and no appeal pending.
4) Arrested and case rejected by prosecutors at intake because of lacking elements for successful prosecution.
5) Arrested and no action (complaint) taken after one year by prosecutors for a Class A or B misdemeanor.
6) Arrested and no action (indictment) taken after three years by prosecutors for a felony case or misdemeanor if a felony was one of the charges out of the same arrest or case.
In any of the above circumstances, it is possible for District Attorney’s Office, DPS or other law enforcement agencies to object to the expunction and prove to the court why the record should remain because of an ongoing investigation or some other clear and convincing reason as to how justice would be served.
Some jurisdictions in Texas will oppose an expunction for a felony that was dismissed if the person pled guilty to a misdemeanor as part of the plea bargain stemming from the same arrest or case. However, at the time of this writing, this is not settled law, or law that has been adopted by the 13 Court of Appeals, which reviews cases for a large portion of South Texas that includes Cameron and Hidalgo Counties. The Barrera Law Firm feels that this law does not comply with the intent of our Texas legislators and goes against the basic policy underlying plea bargains.
