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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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My son was stopped and arrested in Texas on 1st Degree Felony

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My son was stopped and arrested in Texas on 1st Degree Felony of Possession of Controlled Substance. PG Group 2, greater than 400 grams (Edibles, THC, Marijuana Brownies) When his car was searched they found 4 jars of homemade jam and claimed that it contained THC. This was on Friday nite, he spent 2 days/nights in jail awaiting the Justice of the Peace who released him on bond. The jam has been sent to state lab where they will discover fruit and sugar, but nothing illegal. At that time we expect the DA will not take the case to the Grand Jury. Question is, will this arrest and jail time remain on his criminal record? and if so how do we get it expunged.
Thank you for the opportunity to assist you.

Q) Will this arrest and jail time remain on his criminal record? And if so how do we get it expunged?

BotXXXXX XXXXXne: It's too early to request an expunction at this time.

An expunction is the removal of a record from a person's criminal history (i.e. his "rap sheet"). Expunction applies to any entry in a criminal history, including convictions, arrests, records of jail time, being on probation, etc.

Expunction law is different in every state. Texas expunction is controlled by the Texas Code of Criminal Procedure section 55.01. Texas allows expunction generally under the following scenarios:

1) An arrest for a crime that was eventually not charged
2) A charge that was dismissed or for which the accused was found not guilty
3) Certain misdemeanor juvenile offenses
4) Convictions for truancy (failing to attend school)
5) Arrest or charge of a person whose identity had been stolen by another individual
6) A conviction that is later overturned by an appellate court
7) A conviction that receives a pardon by the governor or by the U.S. President

As you can see, most all adult convictions are ineligible for expunction. Also, expunction is not a right or guaranteed win. It's not as easy as going to the courthouse and filling out a form.

Assume for argument sake that the DA never charges your son. Your son would probably qualify for an expunction under section (1) above. Nonetheless, he still has to wait until the statute of limitations has expired for, and he can longer be charged with, the particular charge.

First degree felony possession of a controlled substance has a 3 year statute of limitations, according to Texas Code of Criminal Procedure 12.01(7). Thus, if your son is not charged, he must wait at least three years to apply for expunction.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
S. Huband, Esq. and other Criminal Law Specialists are ready to help you
Hello again,

I was notified that you rated the answer I gave positively, and I am very pleased and gratified that I was able to help you. I sincerely hope the matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Thank you very much for the opportunity to assist you.

Take care,
Shuband

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