Expunctions and Non Disclosures Tarrant County Criminal Defense Bar August, 2006

Transcription

1 Expunctions and Non Disclosures Tarrant County Criminal Defense Bar August, 2006 Greg Pipes Assistant Criminal District Attorney Tarrant County, Texas (817) (817) fax

2 Table of Contents Expunctions 3 Diagram of statute.. 3 Bhat changes.. 4 Hoogerwerf 4 Identity Theft. 6 Filing Jurisdiction.. 7 No Probable Cause cases.. 8 Statute of Limitations Added 8 Convicted of Felony within 5 years prior. 9 Convicted under a or b 9 The Petition What cannot be expunged 10 Plea in Bar Cases.. 11 Partial Expunction Expunction of less than all charges.. 12 When Expunction Granted 12 File Petition only when Eligible 12 Expunction to control availability of evidence in civil suite 12 Non Disclosures. 13 Petition requirements. 13 Waiting Periods. 14 Ineligible to seek non disclosures.. 15 Web site information. 16 State agencies exempt from statute 16 Table of Cases..18

3 Expunctions and Non Disclosures Expunctions Chapter 55 of the code of Criminal Procedure was originally passed in It was straightforward and limited to those circumstance specifically set out in the statues. It was seldom used because the existence of arrest records was seldom used to determine job opportunity or housing placements. With the development of the information age and the internet, making arrest, as well as conviction information available cheaply and instantly arrest records figure into a greater number of decisions daily. When two applicants are equally qualified and one has to use a part of their face time to explain how and why he or she was wrongly arrested, it is easy to figure who is likely to get the job or the apartment. It has also been known to turn an opportunity for promotion into an out right dismissal from employment. With amendments to the statue expunction of arrests are now available in the following situations: Acquittal Pardon after conviction, or if Felony and Misdemeanor and No indictment or information presented or If Felony indicted or Misdemeanor filed Dismissed or quashed and Statute of limitations has expired or Presentment of the indictment was due to Mistake False information Reason indicating absence of probable cause and Person released and No final conviction No longer pending No court-ordered probation and Person has not been convicted of a felony in the five years preceding the arrest sought to be expunged BHAT After State v. Bhat 127 S.W. 3d 435 (Tex App-Dallas 2004) Misdemeanors and Felonies are treated the same. Before Bhat any reason for a

4 dismissal of a misdemeanor other than dismissal following probation was good enough to allow expunction. Prior to Bhat, misdemeanors were governed by Ex parte Michael Davis Scott, 818 S.W.2d 226 (Tex App.-Corpus Christi, 1991). The requirement of an arrestee seeking expunction of an arrest record show that there had been neither an indictment or information charging a felony, or that the felony indictment or information was dismiss because the filing of charges was due to fraud, mistake or reason indicating lack of probable cause did not apply to an arrestee charged only with a misdemeanor. This requirement does now apply to misdemeanors or else the Petitioner must show that the Statute of Limitations has expired. See also, Collin County Criminal District Attorneys Office v. Dobson, 167 SW3d 625 (Tex.App.-Dallas 2005, no pet.). HOOGERWERF Some lawyers had raised a question as to whether Bhat had to be followed since it was a court of appeals opinion from the Dallas Court of Appeals. That issue is now mute since Dallas County District Attorney s Office v. David Hoogerwerf not reported in S.W.3d, 2005 WL (Tex. App.-Fort Worth) decided December 15, Hoogerwerf was arrested in Denton County in June 2001 by Irving Police for sexual assault committed in Dallas County on September 30, Hoogerwerf, Appellee, filed an expunction in October 2003 in Denton County a hearing set November 14, The Court notified Dallas County Criminal District Attorney, Appellant, of this hearing. Dallas DA s Office was not present but no hearing occurred. On September 7, 2004 Appellee filed a petition in Dallas County to expunge the same records. Appellant filed a general denial to the petition. On November 8,2004 a hearing was held on the Denton County Case. Denton DA s Office was present but claimed no prior notice and reported that Appellee had told Asst. Denton DA that it was planning on securing an indictment. Appellee requested to put on testimony and hold a decision on the expunction for two weeks to see if Dallas, Appellant, would indeed indict or file against Appellee. The Court asked Denton Prosecutor if he was opposed to this request. Included in Appellee s testimony was the fact that Appellee had several times been told of Appellant s intention to look at case and that Appellant had not done so. The Denton Prosecutor requested the court reset the case for a final ruling two weeks later to allow Appellant to indict Appellee or not. On November 22, without a hearing on the record the court granted Appellee s petition for expunction. On December 8, 2004, after receiving notice of the trial courts order granting the expunction, Appellant filed a motion for new trial. At hearing on motion for new trial Appellant claimed no notice of November hearing and that

5 case was an active investigation in Dallas County and also argued that, as a matter of law, because the ten-year statute of limitations had not run, Appellee was not entitled to expunction. The District court denied MNT, granted the expunction. On appeal, Appellant argued 1) the evidence is legally insufficient because Appellee failed to offer any proof that the statute of limitations had run, that the case was no longer pending, or that he had not been convicted of a felony in the five years preceding the arrest; 2) the trial court erred in granting an order of expunction without providing notice of the November 2 or November 22, 2004 hearings to respondents named in the petition, including Appellant, and 3) the trial court abused its discretion by issuing an order in a civil expunction proceeding enjoining a criminal grand jury from receiving evidence in a criminal case. The Fort Worth Court of Appeals agreed that the evidence is legally insufficient to support the trial court s order granting expunction of criminal records because Appellee failed to offer any proof that the statutory requirements of Article of the Texas Code of Criminal Procedure were met. To prevail the Appellee would have had to prove all of the following: (A) no indictment or information charging the person with a felony had been presented or if an indictment or information 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. (ii) (does not apply to this case.) (B) the person has been released and the charge if any, has not resulted in a final conviction and is no longer pending ; and (C) the person has not been convicted of a felony in the five years preceding the date of the arrest. Appellee s proof failed in at least 2 respects, his admission that he had been told several times that the Dallas DA s Office was going to look at the case. No longer pending, would imply a settled status, being told several times it was to be looked at does not show no longer pending. Second, Appellee did not prove and could not prove that the statute of limitations had expired before the petition was filed. As a practical point it would be a good idea to plead the positive points that make client eligible like: 1. statue of limitations has expired before the filing of this petition 2. petitioner plead to class C misdemeanor, received DFAJ and judge noted completion of DFAJ on docket and dismissed case. 3. if only eligible for partial expunction state what is being asked for. Petitioner seeks expunction of (offense) which was charged in

6 indictment and was not waived or abandoned prior to trial and petitioner was not found guilty of during plea. 4. Identify in title what you are seeking Not Guilty.. partial expunction of charges not addressed in plea. Acquittals and pardons do not require absence of felony convictions for five years prior to the arrest sought to be expunged. The Statue requires a least 30 days between the filing and the hearing date, unless the petition is based on acquittal. Originally the hearing on acquittals was to be heard in the court where the acquittal occurred. Jurisdiction to grant expunctions by County Court Judges, JP s or Municipal judges was limited to 30 days following the entry of acquittal. Since September 2003 all expunctions based on acquittal are required to be filed in District Court but the hearing and granting of relief should be held or granted with in 30 days. A person seeking expunction following acquittal does not loose his right to expunction merely because the 30- day deadline passes. Bargas v. State, 164 SW3d 763 (Tex. App. Corpus Christi 2005) Identity Theft Prior to September 1, 2001 there was no remedy in the expunction statute for those who were the victim of identity theft. For years criminals, attempting to avoid arrest claimed to be someone else and would give someone else s name, birth date, and other information hoping to avoid outstanding arrest warrants existing or believed to exist. Some of our brilliant defendants managed to get arrested because the person they claimed to be had arrest warrants out and they did not. This was not the usual case and this gave many honest citizens large headaches trying to explain that a brother, sister, cousin, friend or enemy had used their identity when arrested. One reason expunction was not available prior to 2001 was because the statute appeared to require petitioner be arrested to have the benefits of the statute. Relief is only available if the arrested person gave the victims name and or personal information without the consent of the person seeking expunction. Originally a victim of identity theft was required to file his own petition and wait the 30 days before hearing and carry the burden of proving his case at the hearing. As of September 2003 a victim of identity theft may secure a set of verified fingerprints, give them to the Sheriff s Office in Tarrant County, if that is their residence and the Dispute Resolution Officer will compare the fingerprints of the Petitioner to the fingerprints of the person using their name at arrest and write a report that The Tarrant County Criminal District Attorney will use to secure an order to expunge the petitioner name and identification from the records of the

7 person who was actually arrested. We are trying to cover all the locations where this Identity theft occurred. Relief is only available if the arrested person gave the victims name and or personal information without the consent of the person seeking expunction. In this instance arrest records are corrected rather than destroyed. Victim must file a sworn application with DA and that application will be filed with clerk when order is presented to the Judge. Filing Jurisdiction Prior to September 1999 a petition for expunction was required to be filed in the county where the arrest occurred. After September 1, 1999 a petition can be filed in the county of arrest or the county where the offence occurred. Until September 2003 the statue specified an arrest. This was thought to be an actual arrest. Harris County District Attorney v. Lacafta: 965 SW2d 568 (Tex. App.-Houston {14 th Dist.]1997, no writ). This was modified in Carson v. State, 65 SW3d 774 (Tex. App. Fort Worth 2001) where the court ruled that the voluntary appearance in the court to defend himself as a result of a letter from a city prosecutor notifying him of the charge, and the time and place of the trial constituted an arrest for purposes of this statute. The Legislature as of September 1, 2003 now specifies a custodial or non-custodial arrest. Signing a promise to appear after being stopped for a traffic violation would be a sufficient arrest for the statute. The statute does not currently specify what a non-custodial arrest is. No Probable Cause Cases Before 2001 proof that the indictment was a mistake, fraud, or the dismissal was because there was an absence of probable cause to believe the person committed the offense was a difficult burden to meet. The following cases found the offered proof did not justify expunction: Dismissal due to fact that evidence would not prove case beyond a reasonable doubt. (higher burden for conviction than indictment) Harris County District Attorney s Office v. M.G.G., 866 SW2d 796 (Tex. App. Houston 1993, no writ). Grand Jury s consideration of inadmissible evidence such as illegally seized evidence or inadmissible confession is not the same as showing that the factual underpinnings to the presentment and indictment of the offense were incorrect. County District Attorney s Office v. M.G.G., 866 SW2d 796 (Tex. App. Houston 1993, no writ).

8 Dismissal due to missing witness is not lack of probable cause. Texas Department of Public Safety v. Mendoza, 952 SW2d 560 (Tex. App. San Antonio 1997, no writ). To meet his burden of proof under this provision, a petitioner must show both that mistake, false information, or similar reason caused the indictment to be presented and that the fact of wrongful or mistaken presentment caused the dismissal. Also the finding that the presentment had been made because of false information or mistake requires proof that the grand jury based its decision to indict on erroneous facts, Sink v. State, 685 SW2d 403 (Tex. App. Dallas 1985, no writ); Ex parte Kilberg, 802 SW2d 17 (Tex. App. El Paso 1990, no writ). Statute of Limitation added In 2001, the statute of limitations became a method of getting dismissed felony cases off of a person s record. This is true except in cases having no statute of limitations or statutes of long duration such as sexual statute of limitation. Convicted of Felony within 5 years Convicted within 5 years prior to the date of arrest means not only case where petitioner convicted and sent to IDTDCJ but also includes convicted and given probation. In straight probations the date used to calculate the five years is the date petitioner was placed on probation, not date probation was revoked. Heine v. Texas Department of Public Safety, 92 SW3d 642, (Tex. App. Austin 2002). In Jackson v. State, Dallas Court of Appeals, not reported S.W. 3d 2005 WL (Tex. App. - Dallas No CV, decided September 26, 2005, a petitioner tried unsuccessfully to argue that the conviction date for his DFAJ was the date the judge placed him on DFAJ rather than the date he was revoked which was within the 5 year period prior to the arrest sought to be expunged. Convicted under Sec a or b It is possible to negotiate a plea to a misdemeanor from a felony and have nothing to expunge. If you reduce the felony to a misdemeanor of the same name you no longer have a felony arrest to expunge. The felony arrest is necessary to support the offense reduced to a misdemeanor. If you negotiate a specific misdemeanor to be the offense the petitioner pleads to then the felony can still be expunged. See: Texas Department of Public Safety, Appellant v. Lawrence Six, Appellee 25 SW3rd 368 (Tex. App- Fort Worth 2000) The Petition Article sets out the requirements of the petition: Petition must be verified

9 Contain the following information or a reason the information was not included: Full name Sex Race Date of birth TX Driver license Social Security Address at time of arrest Date of Arrest Date of Offense Charge at arrest County of Arrest Court Cause Number Agency making arrest TRN List of Agencies holding records and Addresses Petitions seeking the expunction of a case based on acquittal must include a copy of the judgment of acquittal with the order. Petitions involving Stolen Identity require additional information where known: Name of the person Arrested A statement that the petitioner is not the person arrested A statement that the petitioner did not give the person arrested consent to falsely identify himself or herself as the petitioner Art , Sec. 1 (e) Verified fingerprints must be attached When order granting an identity theft expunction is signed each respondent agency shall: Obliterate all portions of the record that identify the petitioner Substitute for all obliterated portions of the record any available Information that identifies the person arrested. Art 55.02, Sec. 5(f) Files need not be returned to the court and no deletions of index References need be made Art , Sec 5(f)(2). Just changes to remove petitioner s name and or identifying data.

10 What cannot be expunged The following cannot be expunged: Guilty jail Guilty fine Guilty IDTDCJ Guilty Probation DFAJ except Class C misdemeanors where judge notes on docket that DFAJ has been completed and case is dismissed. Drivers license suspensions imposed because of breath refusal Or because petitioner failed test except when petitioner has been acquitted of DWI. Tex. Trans. Code Ann and Corporate criminal cases. State v. Autumn Hills Center, Inc., 705 SW2d 181 (Tex. App. Houston [14 th Dist] 1985). Records held by individuals or private entities. Only applies to records held by State Agencies. Records held by federal agencies (DPS requests FBI to comply). Cannot expunge records held by public data. Com (they may voluntarily comply) Art (c) provides that expunction can be denied even on an acquittal if the offense arose out of a criminal episode and the petitioner was convicted of or remains subject to prosecution for at least one other offense. Upon request the court may order investigating agencies and prosecuting agencies to keep their records if they support more than one case or more that one defendant. The expunction can be accomplished if the expunged offence is deleted from the records or if references to the petitioner are obliterated. Plea in Bar cases A plea in bar may be expunged in spite of the fact that such plea in bar could be admitted in the punishment phase of a future trial of petitioner. Travis County Attorney v. J.H.S., 37 SW3d 163 (Tex. App. Austin 2001, no writ). Partial Expunction Less than all Respondents A judge may not grant expunction as to some respondent agencies and deny expunction as to other respondents. Ex parte Elliot, 815 SW2d 251 (Tex. 1991).

11 Also, 68 SW3d 179, Texas Dept. of Public Safety v. Woods, (Tex. App. Houston [1 st dist.] 2002) Expunction of Less Than All Charges A judge may expunge some charges from an arrest even though other charges from same arrest are not eligible for expunction. Ex parte E.E.H., 869 SW2d 496 (Tex. App. Houston-1 st 1993). Also State v. Knight, 813 SW2d 210 (Tex. App. Houston 14 th, 1991). A petitioner is entitled to an expunction if a plea is entered to a lesser offense and the State did not abandon or waive other charges in the indictment or complaint. This is also true if an offense is dismissed as a result of a plea bargain to dismiss in exchange for plea in another case. In re M. H. S. 614 S. W. 2d 890 (Tex. App. Eastland, 1981). When expunction granted When expunction is final a petitioner may deny the existence of the arrest and of the expunction order even under oath except under oath in a criminal trial in which case he may only reply that the matter in question has been expunged. Art Code of Criminal Procedure. It is a class B misdemeanor for anyone who disseminated information concerning an arrest if he knows of the existence of expunction and knows of the arrest because of his employment. Art Code of Criminal Procedure. It is also a class B misdemeanor for a person to knowingly fail to return or knowingly fail to obliterate identifying portions of a record or file ordered expunged under chapter 55 Code of Criminal Procedure. File Petition only when Eligible for expunction. Statute allows filing petition only when all conditions have been met, such as statute of limitations has expired, otherwise one s right to expunction may be cut off by an earlier dental of expunction. See Ex Parte Melonie Lynn Myers 68 S.W.3d 229 (Tex. App. Texarkana, 2002). Res Judicata applies whether denial of earlier was administrative or legal. This also involves loss of filing fees, even if earlier denial is without prejudice. Expunction to control availability of evidence in civil suite The filing of a civil action arising out of petitioner s arrest necessarily by his own allegations makes the materials contained in the expunged records, as well as the contents of the expunction file, a matter of public record subject to discovery proceedings. Ex parte W.V. v. State of Texas and District Attorney,

12 Dallas County, Texas 669 S.W.2d 376 (Tex. App. Dallas 1984) the court quoted from Ulinsky v. Avignone 148 N.J. Super. 250, 372 A.2d 620 (1977) The remedy of expungment was never intended as a device by which a plaintiff in a malicious prosecution suit could control the availability of evidence relative thereto. The New Jersey court held that a refusal to consent to disclosure of the record required dismissal of the civil action. The Texas court concluded, We can perceive of no reason under our expunction statutes that a Texas court would not grant similar relief. Non-disclosure of some successfully completed deferred adjudication probations Art Government Code Requires the filing of a petition and the payment of $28.00 fee payable to the State general Fund since September 1, 2005 the Clerk of the court may charge a filling fee also. Petition Requirements The petition must provide identifying information: Petitioners name Cause number Offense Date of plea Date DFAJ successfully terminated and dismissed. The petition must assert qualifying information: Where delay periods apply petition must assert That during delay period not convicted of or received DFAJ for any offense more serious than a traffic offense for which a fine is only available punishment. Not convicted of or DFAJ for: Any offense requiring registration as a sex offender Murder, Capital Murder, Injury to a child, elderly or disabled, endangering a child, violation of a protective order, stalking or aggravated kidnapping, or any other offense involving family violence, as defined by Family code sec Family Violence means an act by one member against another member of the family or household intended to result in, (1) Physical harm (2) Bodily injury (3) Assault (4) Sexual assault, or (4) Threat that reasonably places the member in fear of the above. Family violence does not include defensive measures to protect oneself. Family violence V also includes abuse by a member of a family or

13 household toward a child of the family or household or Dating violence, as defined by Sec Family Code. Waiting Periods Some Misdemeanors are eligible immediately after DFAJ is complete. Some Misdemeanors have a two-year delay from the release from DFAJ. Some Misdemeanors are not eligible for Non Disclosure. All eligible felonies have a five-year waiting period. Two year Waiting Period applied to following Misdemeanor offenses: Unlawful Restraint Homosexual conduct Public Lewdness Indecent Exposure 1 st offense (second offense requires registration and is not eligible) Assault (but not if against Police Officer or Family member or household) Deadly Conduct Terroristic Threat Aiding Suicide Leaving a child in a vehicle Harassment by persons in certain correctional facilities Bigamy Enticing a child Harboring a runaway child Violation of Protective Order preventing offense caused by bias or prejudice Advertising for placement of Child Disorderly Conduct Riot Obstructing Passageway Disrupting Meeting or Procession False Alarm or Report Harassment Abuse of Corpse Cruelty to Animals Dog Fighting Destruction of Flag Discharge of Firearm in Certain Municipalities Use of Laser Pointers Unlawfully carrying a weapon Unlawful possession of a firearm Prohibited weapon

14 Unlawful transfer of certain weapons Hoax Bomb Making a firearm accessible to a child Ineligible to seek an order of Nondisclosure Anyone who has ever committed any of the following offenses (including the offense the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure: Indecency with a child Sexual assault Aggravated sexual assault Prohibited sexual conduct (incest) Aggravated kidnapping Burglary of a habitation with intent to commit any of the above offenses Compelling prostitution Sexual performance by a child Possession or promotion of child pornography Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age Attempt, conspiracy, or solicitation to commit any of the above offenses Capital murder Murder Injury to a child, elderly individual or disabled individual Abandoning or endangering a child Violation of protective order or magistrate s order Stalking Any other offense involving family violence. Web site Information A web site with useful information and sample petitions is daoweb.dao.hctx.net. on upper left side of home page, under F.A.Q.s is a link DADJ Non-Disclosures. This site has a very good explanation of the law and sample petitions covering different courts and delay periods when applicable. There are also sample orders but I will prepare an order and enter it with the judge and the clerk will mail you a copy, usually within two weeks. If I am in agreement with your petition there will be no need for a hearing, neither you nor your client will need to be present. If I am not in agreement I will file and answer and the clerk will arrange a contest setting.

15 State Agencies Exempt from Statute (i) Gov. Code A criminal justice agency may disclose criminal history record information that is the subject of an order of nondisclosure to the following noncriminal justice agencies or entities only: (1) the State Board for Educator Certification: (2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangement; (3) the Texas State Board of Medical Examiners; (4) the Texas School for the Blind and Visually Impaired; (5) the Board of Law Examiners; (6) the State Bar of Texas; (7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code; (8) the Texas School for the Deaf; (9) the Department of Family and Protective Services; (10) the Texas Youth Commission; (11) the Department of Assistive and Rehabilitave Services; (12) the Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation; (13) the Texas Private Security Board; (14) 14 a municipal or volunteer fire department; (15) the Board of Nurse Examiners; (16) a safe house providing shelter to children in harmful situations; (17) a public or nonprofit hospital or hospital district; (18) the Texas Juvenile Probation Commission; (19) the securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner; (20) the Texas State Board of Public accountancy; (21) the Texas Department of Licensing and Regulation; (22) the Health and Human services Commission; and (23) the Department of Aging and Disability Services.

16 Expunctions and Nondisclosures Cases cited Page Bargas v. State, 164 SW3d 763 (Tex. App. Corpus Christi 2005).. 5 Carson v. State, 65 SW3d 774 (Tex. App. Fort Worth 2001). 6 Collin County Criminal District Attorneys Office v. Dobson, 167 SW3d 625 (Tex.App.-Dallas 2005, no pet.)... 3 Dallas County District Attorney s Office v. David Hoogerwerf not reported in S.W.3d, 2005 WL (Tex. App.-Fort Worth). 3 Ex parte E.E.H., 869 SW2d 496 (Tex. App. Houston-1 st 1993). 10 Ex parte Elliot, 815 SW2d 251 (Tex. 1991).. 10 Ex parte Kilberg, 802 SW2d 17 (Tex. App. El Paso 1990, no writ).. 7 Ex Parte Melonie Lynn Myers 68 S.W.3d 229 (Tex. App. Texarkana, 2002). 11 Ex parte Michael Davis Scott, 818 S.W.2d 226 (Tex App.-Corpus Christi, 1991)... 3 Ex parte W.V. v. State of Texas and District Attorney, Dallas County, Texas 669 S.W.2d 376 (Tex. App. Dallas 1984) 11 Harris County District Attorney v. Lacafta: 965 SW2d 568 (Tex. App.-Houston {14 th Dist.]1997, no writ).. 6 Harris County District Attorney s Office v. M.G.G., 866 SW2d 796 (Tex. App. Houston 1993, no writ). 7 Heine v. Texas Department of Public Safety, 92 SW3d 642, (Tex. App. Austin 2002). 8 In re M. H. S. 614 S. W. 2d 890 (Tex. App. Eastland, 1981) 10 Jackson v. State, Dallas Court of Appeals, not reported S.W. 3d 2005 WL (Tex. App. - Dallas No CV.. 8 Sink v. State, 685 SW2d 403 (Tex. App. Dallas 1985, no writ) State v. Autumn Hills Center, Inc., 705 SW2d 181 (Tex. App. Houston [14 th Dist] 1985)... 9 State v. Bhat 127 S.W. 3d 435 (Tex App-Dallas 2004). 3 State v. Knight, 813 S.W. 2d 210 (Tex. App. Houston 14 th, 1991)... 10

17 Texas Department of Public Safety v. Mendoza, 952 SW2d 560 (Tex. App. San Antonio 1997, no writ). 7 See Texas Department of Public Safety, Appellant v. Lawrence Six, Appellee 25 SW3rd 368 (Tex. App- Fort Worth 2000) 8 Texas Dept. of Public Safety v. Woods, (Tex. App. Houston [1 st dist.] 2002) 10 Travis County Attorney v. J.H.S., 37 SW3d 163 (Tex. App. Austin 2001, no writ). 10 Ulinsky v. Avignone 148 N.J. Super. 250, 372 A.2d 620 (1977)... 11

18 E- EX PARTE * IN THE * DISTRICT COURT OF * TARRANT COUNTY, TEXAS PETITION FOR EXPUNCTION TO THE HONORABLE JUDGE OF SAID COURT: Comes now Petitioner herein, and prays this Honorable Court to order expunction of any and all records pertaining to his arrest(s) which occurred in Tarrant County, Texas and in support thereof, would respectfully show the following: I. Full Name: Race: Sex: Date of Birth: Texas Drivers License Social Security: Address at time of Arrest: II. The following information is provided concerning the arrest: Date of Arrest: Date of Offense: Charge at Arrest: Arresting Agency: Agency Service Number: Cause Number Court: TRN: III. Petitioner is eligible for expunction under Article for the following reason:

19 ( ) Although arrested no charges were ever filed and the Statute of Limitation has expired. ( ) Charges were filed but were dismissed without an indictment and Statute of Limitations has expired. ( ) Misdemeanor charges were filed but were dismissed and statute of limitations has expired. ( ) Indicted but indictment has been dismissed or quashed and indictment was dismissed or quashed 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. ( ) Indicted and dismissed and the statute of limitation has expired before the filing of this petition. ( ) Petitioner was tried by a Judge or a Jury and found NOT GUILTY. ( ) Petitioner was convicted but the case was reversed on appeal and the state has indicated it will not retry petitioner. ( ) Petitioner was convicted but the case was reversed and rendered and the state cannot retry petitioner. ( ) Petitioner has been granted a pardon by the Governor of the State of Texas on the day of, 200_. ( ) Petitioner was placed on DFAJ for class C misdemeanor offense and has successfully completed DFAJ and completion and dismissal of DFAJ is noted on the Judges docket sheet. ( ) Other: IV. Petitioner 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 V. Petition has not been convicted of a felony in the five years preceding the date of the arrest. VI. Petitioner has reason to believe the following agencies have records or files subject to expunction and should be served with notice of this petition.

20 (Arresting agency And address) (Municipal Ct or JP ct And address) Tarrant County Criminal District Attorney s Office 401 W. Belknap Fort Worth, TX Tarrant County Clerk Criminal Division 401 West Belknap Fort Worth, TX Tarrant County District Clerk s Office Criminal Division 401 West Belknap Fort Worth, TX Tarrant County Sheriff s Department 300 W. Belknap Fort Worth, TX Texas Department of Public Safety Crime Record Division- MSC 0234 PO Box 4143 Austin, TX Federal Bureau of Investigation C/o Texas Department of Public Safety PO Box 4087 Austin, TX 78773