Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, June 8, 2011

The nature of Expunction: A statutory remedy

GETTING CRIMINAL RECORDS EXPUNGED 

Expunction: A creature of the Legislature 
 
Expunction is neither a constitutional nor common law right, but a statutory privilege. Ex parte S.C., 305 S.W.3d 258, 260 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Where a cause of action is created by statute, all of its provisions are mandatory and exclusive, requiring strict compliance for the action to be sustained. Harris Cnty. Dist. Att’y v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.). The trial court has no power to extend equitable relief beyond the clear meaning of Article 55.01. See J.H.J., 274 S.W.3d at 806. Although the expunction statute is situated in the Code of Criminal Procedure, an expunction proceeding is civil in nature, and the petitioner carries the burden of proving that all statutory conditions have been met. Harris Cnty. Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796, 798 (Tex. App.—Houston [14th Dist.] 1993, no pet.).
 
SOURCE: Houston Court of Appeals - 14-10-00532-CV - 6/7/11 
   
RELATED LEGAL TERMS: Expungment of arrest records, indictments, criminal court records, lawsuit petition for expunction
   
RECENT EXPUNCTION CASE LAW CLIPS FROM OTHER COURTS OF APPEALS 
  
The right to expunction is a statutory privilege. In re Expunction of Ramirez, 143 S.W.3d 856, 858 (Tex.App.-El Paso 2004, no pet.). Article 55.01 of the Texas Code of Criminal Procedure controls a criminal defendant's right to have all records and files related to the arrest expunged. See Tex.Code Crim.Proc.Ann. art. 55.01(a)(Vernon Supp. 2010). The burden of proof for compliance with the statute in an expunction proceeding rests with the petitioner. Collin County Criminal Dist. Attorney's Office v. Dobson, 167 S.W.3d 625, 626 (Tex.App.-Dallas 2005, no pet.). Article 55.01 requires strict compliance, leaving courts without equitable power to expunge criminal records. See Texas Dept. of Pub. Safety v. Wiggins, 688 S.W.2d 227, 229 (Tex.App.-El Paso 1985, no writ). The right to expunction is a statutory privilege. In re E.R.W., 281 S.W.3d 572, 573 (Tex.App.-El Paso 2008, pet. denied); In re C.V., 214 S.W.3d 43, 44 (Tex.App.-El Paso 2006, no pet.). The statute gives people the opportunity to have all records of an arrest expunged provided certain requirements are met. Tex.Code Crim.Proc.Ann. art. 55.01 (West Supp. 2010); In re E.R.W., 281 S.W.3d at 573; In re C.V., 214 S.W.3d at 44. All provisions in a statutory cause of action are mandatory and exclusive, and all conditions must be met before a person is entitled to expunction. In re E.R.W., 281 S.W.3d at 573; In re C.V., 214 S.W.3d at 44. A statutory expunction proceeding is civil rather than criminal in nature, and the petitioner bears the burden of proving compliance with the statute. In re E.R.W., 281 S.W.3d at 573; In re C.V., 214 S.W.3d at 44. Article 55.01 provides, in pertinent part: (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if: . . . (2) each of the following conditions exist: (A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and: (i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or (ii) the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void; (B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and (C) the person has not been convicted of a felony in the five years preceding the date of the arrest. Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).


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