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MyraB
MyraB, Lawyer
Category: Criminal Law
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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in Texas, last week was no billed by grand jury for a 3rd degree

Customer Question

in Texas, last week was no billed by grand jury for a 3rd degree felony case for injury to a child. can I petition for my arrest to be expunged or do I need to wait for a certain time frame..
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.

Hi. It will be my pleasure to assist you with your question today.

The rule for expunction of criminal records, including records of arrest, is Chapter 55 of the Texas Code of Criminal Procedure which can be found here http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.55.htm#55.01

The rule states that a person is entitled to have all records and files relating to the arrest expunged if: "(A) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending" . . . and "(2) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested: (i) has not been presented against the person at any time following the arrest, and: (c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony."

Because the charge was for a felony, under this rule you are entitled to expungement of the record of arrest three years from the date of arrest.

Please feel free to ask any follow-up questions.

Customer: replied 1 year ago.

Therefore, the fact that the potential charge was for injury to a child, it doesn't follow the longer statue... and is it because it was a no bill... my atty told me 10 years past my daughters 18th birthday... the case was in Denton county.

Could I request the DA to write a letter to state my case is not involved in any other investigation and they recommend expungement? Is it feasible that they will even do that?

 

Here is the code:

(6) ten years from the 18th birthday of the victim of the offense:

(B) injury to a child under Section 22.04, Penal Code; or

Expert:  MyraB replied 1 year ago.

Thank you for your response.

Rule 55 specifically states that the rule applies "regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired."

The statute of limitations you mention is for the crime. This is the period in which charges may be brought against a person. If the police discovered more evidence that they believed sufficient to establish probable cause, they could seek to indict again during this period.

However, because in your case the return of the grand jury was a no bill, under Rule 55 you are entitled to have the arrest record sealed in 3 years regardless of the statute of limitations for the crime. It is not necessary to get a letter of support from the DA.

Please feel free to ask any follow-up questions.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Could I possibly get my record sealed from the public in the meantime as I await the 3 yrs to expire for the expungement?

Expert:  MyraB replied 1 year ago.

Thank you for the positive rating.

Texas Gov't Code Section 411.081 governs orders of nondisclosure. This section applies after a person has completed a sentence or deferred adjudication and would not apply to the circumstances you describe. This and expungement are the only two methods of which I am aware.

It is my understanding that the process of expunction in TX can be complicated. You may want to follow-up the above information with an attorney who can give you specific advice regarding your unique circumstances. The Texas Bar has a lawyer referral service available here http://www.texasbar.com/AM/Template.cfm?Section=Lawyer_Referral_Service_LRIS_

The service will refer you to a lawyer who is experienced in criminal record expungements. The initial half hour consultation will be no more than $20.

I wish you the best. Again, feel free to ask any follow-up questions.

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MyraB
MyraB
Criminal Lawyer
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I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.