One unfortunate issue with background checks of arrest records with expunctions and nondisclosure orders is arrests for a felony level offense resolved by plea agreement. This type of plea deal may make tremendous sense to avoid a prison sentence. The appellate decision in In re Expunction earlier this year addresses this problem and why an expunction is typically not available in these plea agreements.
Plea agreements and expunction problems in Texas
In In re Expunction the individual suffered arrest and later charge with criminal attempt of indecency with a child by sexual contact. This offense is a third degree felony. Eventually the individual accepted a plea agreement. He pleaded guilty to assault causing bodily injury, a class A misdemeanor. Down the road the defendant sought to expunge records of the felony arrest. The district attorney and Department of Public Safety opposed the expunction. The court granted the expunction. The state appealed. On appeal the appellate court overturned the trial court’s order and rendered judgment in favor of the state.
The appellate decision addressed several issues but the important issue here is the language of the plea agreement. Within the plea agreement the defendant acknowledged that the state had presented an indictment for the felony charge. This becomes a problem because the Texas Penal Code authorizing expunctions lists specific scenarios to grant expunctions in Texas. First, the state does not present the indictment or information to the court. Here, the defendant threw out that opportunity by admitting in the plea agreement that the state had presented the indictment. Alternatively, he could have shown completion of a pretrial diversion program–but one wasn’t–or the state presented the indictment in a way that proved probable cause did not exist–which did not happen. A third scenario is one in which the statute of limitations has passed without prosecution.
Unfortunately for the defendant, indecency with a child carries no limitations period. The state can prosecute it forever. The defendant had one shot at the expunction due to the plea agreement terms. As a result, the defendant–and his attorney–blew his one shot at expunction by including that one line admitting that the state presented the indictment to the court.
When a defendant accepts a plea agreement, the terms of that agreement really matter. If that one line that been left out of the plea agreement then the expunction would have likely survived the appeal.