Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

I received an email today asking me this question, and it’s a pretty simple one to answer:

Yes, if you are (a) entitled to expunge each of them separately and (b) if the arrests occurred in the same county.

The Texas expunction statute requires that we file your petition to expunge your arrest in the county where you were arrested.  So if, for example, you were arrested for Public Intoxication a long time ago in Austin, and got it dismissed (most commonly by completing a deferred disposition), and then were subsequently arrested for DWI, or Theft, of Marijuana, also in Austin, and it now too qualifies for expunction, we can file one petition.

This greatly reduces the legal fees required to expunge prior criminal history, and I always inquire as to whether a client has other arrests that we can seek to erase.

Unfortunately, if the arrests happened in different counties in Texas, then two different petitions must be filed, two different sets of court costs, and more in attorney’s fees. 

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Former prosecutor Sarena Straus proposed a hypothetical jury instruction recently in response to WindyPundit’s question “What do you wish jurors knew? Or perhaps a better question is what do you wish jurors knew that you can't tell them during a trial?” Frustrated by “the key to most unfair acquittals” she had seen in her career, she suggested jurors be told:

"The laws in New York do not allow the prosecutor to introduce evidence of prior arrests or convictions. You are to draw no inferences from the fact that the prosecutor has not introduced evidence of a criminal history. The failure of the prosecutor to introduce such evidence does not necessarily mean that the defendant has no prior criminal history. Nor should this instruction be interpreted by you do mean that the defendant does have a prior history. You must judge the defendant's guilt or innocence based on the evidence presented in this case and in this case alone."

In the comments section to that post I became the third (of the three total commenting) to suggest that this instruction would actually invite the jury to speculate about a defendant’s prior criminal history, whether he had one or not. Straus’ next post followed up on the comments, specifically referencing mine:

And some statements have been made that I flat out disagree with. For instance:  "NO jury on earth ever let a potential sex offender go free, even though they believed the evidence against him, simply because they told themselves, 'Hey, this is probably a first offense'. That sort of jury nullification might happen in misdemeanor marijuana cases, but I think that's about it."

AustinDefense misses my point. Not that juries will not convict someone based on their lack of a prior criminal history (nullify), but that juries might be more inclined to think someone is not guilty (or at least have reasonable doubt) based on thinking lack of evidence of a prior conviction means that they do not have one.

I’ll admit I’m close to missing the point. I agree that she makes a fine distinction here between nullification, and finding someone not guilty because no evidence of prior convictions was presented. In other words, her fear is that the juries will believe that the defendant is substantively not guilty because he has no priors, rather than just cutting him a break for his first offense. But then Straus continues with a specific example that frustrated her:

The most difficult case I ever handled (from an emotional standpoint) was the prosecution of a Marist Brother for raping an 11 year old student… The defendant was in his seventies and had been accused and acquitted in three prior cases. The case received significant press coverage and after the verdict some of the jurors told the reporter that part of the reason for their acquittal was their difficulty believing that someone would start committing these types of crimes at such an old age. [Emphasis Mine]

Again, using Straus’ own words that juries might think “lack of evidence of a prior conviction means that they do not have one,” I’m not sure she gives us the best example, but she does make my point. Her proposed jury instruction would probably have allowed her jury in that case to speculate about prior history, and that very well may have helped lead to a conviction.

But her example doesn’t show a jury that wasn’t allowed to hear about “prior convictions” that existed; her complaint apparently is that they weren’t instructed about prior acquittals.

[Injustice Anywhere also added a comment to the original post.]

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Within today’s New York Times most emailed articles is this gem: Expunged Criminal Records Live to Tell Tales. It chronicles the difficulties folks have when facing an employer armed with a criminal background check when they have a minor offense on their record, and even when they were granted an expunction.

(R)eal expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector.

Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Just google “criminal background check”, and you’ll find hundreds of private companies willing to sell someone’s criminal history (for a fee, of course).

In Texas, the right to an expunction only accrues to someone who is acquitted, or whose case was dismissed. Sometimes my clients in Austin find themselves arrested for a “minor offense”, where the real punishment potentially comes not from what the judge will give them if they are convicted, but from the lifetime of explaining that DWI, Assault, Theft or Marijuana arrest on their record.

Unfortunately, the Texas Expunction statute only applies to governmental agencies, and does not reach the private companies that gathered the data between arrest and dismissal. I’ll have more soon on expunctions, and what can be done to “erase your criminal history”.

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Article 55.01. RIGHT TO EXPUNCTION.

(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:

            (1) the person is tried for the offense for which the person was arrested and is:                       

               (A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

               (B) convicted and subsequently pardoned; or                           

             (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 ismissed or quashed because the presentment had been made because of mistake, false nformation, 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.

(a-1) Notwithstanding Subsection (a)(2)(C), a person's conviction of a felony in the five years preceding the date of the arrest does not affect the person's entitlement to expunction for purposes of an ex parte petition filed on behalf of the person by the director of the Department of Public Safety under Section 2(e), Article 55.02.

(b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:

            (1) tried for the offense for which the person was arrested;

            (2) convicted of the offense; and

            (3) acquitted by the court of criminal appeals.

(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

(d) A person is entitled to have any information that identifies the person, including the person's name, address, date of birth, driver's license number, and social security number, contained in records and files relating to the arrest of another person expunged if:

            (1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person's identifying information without the consent of the person asserting the entitlement; and

            (2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person's identifying information.

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