The expunction process is the final step to clear the arrest record. Even though a person is acquitted or a court order dismisses his case, the arrest record continues to exist electronically and in certain court documents. There are about 17 different agencies that have this record, in addition to the Federal Bureau of Investigation.
The process requires that a civil lawsuit be filed in a district court. Each agency must be served with a copy of the lawsuit and a clerk's process record. They are usually served by certified mail, return receipt requested. When the agency receives the letter, they sign for it, and the certified mail receipt is returned to the clerk's office.
Each agency has 30 days to respond from the date of receipt. They may object by written pleadings or not. If an agency makes no response, the order will be rendered against it by default. Typically, the only agencies that respond are:
- The Texas Department of Public Safety,
- The District and/or County Attorneys' office,
- The City Attorney.
While the District or County Attorney will pursue most defenses, the Department of Public Safety will monitor the proceeding for issues of interest. Depending upon the area of the State, either the DPS or the local prosecutor will make final decisions. If it is a matter of special interest to DPS, they will have the final decision to contest or agree.
If there is a matter of proof, the lawyer can go to the court records and show the attorneys for the State the documents. If it is a matter of pleading, the lawyer can correct the pleading. The petition must specify the defendant's name, several numerical identifiers, and the criminal cause. Sometimes, the pleadings are not specific enough for the particular governmental entity. Sometimes there is a matter of law, and it must be addressed. If the parties cannot agree on the law, the facts, or both, then the judge must decide. These cases sometimes are tried. Additionally, appeals result from trial or court decisions.
Once the judge signs the order:
- The lawyer must obtain two certified copies of it: one for his file and one for the client.
- The original must be filed with the papers in the case.
- The clerk must then send certified mail, return receipt requested, the certified copies to the various agencies.
- The agencies have another 30 days after receipt to delete the information ordered by the court.
Some agencies, like the sheriff departments, do not respond in time. Some, out of sheer laziness, may not do it at all. A call from the lawyer about a show cause order from the judge will correct the problem.
The court costs are high because of the statutory fees for the work the clerk’s office must perform, the copying expense, and the postage: approximately $500 at the time of this article.
The certified copies are important because the process is not infallible due to clerical errors, negligence, and dilatory agency employees. Additionally, some companies sell criminal arrest records over the Internet. They may have obtained the arrest information for their site. They are the main reason why expunctions should be processed as soon as possible. When an arrest disclosure is made for any of these reasons, a certified copy of the court’s order may be necessary to compel the removal of the information. Additionally, if someone represents on a federal or state employment form that no arrest exists, yet it is disclosed by electronic or other means, the certified copy will provide proof of expunction.
It is not wise for an individual to attempt to perform expunctions independently. Most likely, it will be a tragic waste of time and money.
Contact The Law Offices of George A. Scharmen today to schedule a FREE consultation with our DWI expunction lawyer in San Antonio!
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