How Court-Ordered Supervision Affects Expungement Eligibility in Texas

Texas Department of Public Safety V. J.H.J.
Court of Appeals of Texas, Fourteenth District, Houston
November 13, 2008

Holding: A defendant who is placed on community supervision is statutorily ineligible from expunging his or her criminal records pursuant to Texas Code of Criminal Procedure chapter 55.

Why This Case is Important: Expungement in Texas is a statutory right. Although Chapter 55, Texas’ expungement statute, is found in the Texas Code of Criminal Procedure, courts have regularly regarded expungement to be a civil right. As such, different rules, procedures and standards apply to the expungement process.

A petitioner seeking to expunge his or her criminal record must meet the strict statutory requirements of Chapter 55. Article 55.01 states the basic requirements for expunging criminal records. Generally, there are two principal scenarios where a petitioner will be precluded from expungement relief: (1) where the petitioner is convicted of the crime; and (2) where the petitioner was placed on court-ordered community supervision. The issue in this case arises from the latter, when a petitioner has been placed on court-ordered community supervision.

Courts have no wiggle room in assessing whether expungement can be granted. If a petitioner does not meet the statutory requirements, then the petitioner will be precluded from expungement relief. Courts may not extend the requirements of article 55.01 because they are bound by case law, statutory interpretation and legislative purpose, all of which establish that a court may not grant expungement if the requirements of article 55.01 are not met.

The petitioner in this case attempted to expunge his criminal records after obtaining a nunc pro tunc discharge order from the court. The petitioner argued that such an order was synonymous with a judicial clemency, which therefore cleared a path to expunction. For a discussion on the implications of judicial clemency, please read an article on Cuellar v. State.

However, the order that the petitioner received did not remove the fact that he was sentenced to court-ordered community supervision. The court in this case could not stray from article 55.01, which states those who are ordered to community supervision cannot have their records expunged. As a result, the petitioner in this case was denied his expungement request.

Facts of This Case: In 2000, the petitioner in this case entered a plea of guilty/nolo contendere to a charge of Class B misdemeanor theft. The trial judge placed an entry of deferred adjudication and imposed community supervision for six months. The petitioner completed the conditions of his probation, and the trial court discharged him from probation and dismissed the prosecution against him.

The petitioner later experienced trouble obtaining a job because of his arrest record. He therefore petitioned the court for an order of expungement. The criminal trial court granted a nunc pro tunc order to expunge the petitioner’s records. After reviewing the criminal trial court’s nunc pro tunc order, the civil trial court granted the request. The Texas Department of Public Safety appealed the decision, arguing the petitioner was not statutorily eligible for expungement.

The Texas Court of Appeals reversed the order granting expungement. The court of appeals stated that courts must strictly abide by the requirements of article 55.01, which established the requirements for criminal record expungement. The court examined statutory interpretation, case law, and the legislative purpose, and determined that it would be inconsistent with article 55.01 to allow a petitioner who received court ordered community supervision to expunge his records. The court determined that article 55.01 sets forth strict statutory requirements, and that there was no indication from any sources that an exception could be made.

The Texas Court of Appeals thereby reversed the trial court’s judgment and rendered an order denying the petitioner’s expungement request.

Key Language: As we previously held in Brooks v. Harris County District Attorney’s Office, one who receives community supervision is not eligible for expunction, regardless of the type of discharge he receives.

Expert Advise: “This case establishes that courts will strictly comply with the requirements set forth by article 55.01. It is important that attorneys are knowledgeable about the case law and statutory interpretations of article 55.01 in order to successfully assist their clients in obtaining expungement relief.” -Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

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