Criminal Defense Take on 2019 Expunction Policy Reforms by Dallas County District Attorney John Creuzot

Across the country, district attorneys are building what is becoming known as their own criminal justice reform movement.  Given that the top prosecutor in his or her respective jurisdiction gets to make the call in what cases get prosecuted – and what sentences are sought in those cases – there’s a tremendous amount of power to be exercised by District Attorneys (or “State Attorneys” in some jurisdictions).

District Attorneys’ National Reform Movement

Recently these top prosecutors have begun to exercise the powers of their office to do things like deciding not to prosecute shoplifters for felony theft unless they had 10 or more past felony convictions or were alleged to have stolen over $1000 in goods, as Chicago’s DA Kim Foxx (Cook County, Illinois) decided to do back in 2016. For more examples of this national trend, read the discussion of actions taken by Houston’s Kim Ogg and Philadelphia’s Larry Krasner, among others, in Davis, Angela J. “The Progressive Prosecutor: An Imperative for Criminal Justice Reform.” Fordham L. Rev. Online 87 (2018): 8.

Here in North Texas, no one typifies this new reform prosecutor more than our own Dallas County District Attorney, John Creuzot.  A former judge, he ran on a reform platform and was supported by reform organizations around the state (and the country).  His campaign against incumbent Faith Johnson garnered coverage in the New York Times, as Creuzot promised an end to “mass incarceration”  if elected.

Dallas DA Creuzot’s 2019 Reforms

Creuzot was elected, of course.  And you can read his April 2019 letter to Dallas County, where he announced several changes to how the local Office of the District Attorney would be handling things in the future to “…make our community safer by ensuring that our limited resources are spent where they can do the most good.”

Among those reforms were controversial decisions including (1) declining prosecution on misdemeanor possession of marijuana cases for first-time offenders whose offenses do not occur in a drug-free zone, involve the use or exhibition of a deadly weapon, or involve evidence of delivery; (2) refusing to prosecute anyone caught possessing less than .01 grams of drug “trace” evidence; and (3) deciding not to prosecute theft of personal items less than $750 unless the evidence shows that the alleged theft was for economic gain because “[c]riminalizing poverty is counter-productive for our community’s health and safety.”

Another reform decision made by Dallas County District Attorney John Creuzot, and the subject of today’s consideration:  Misdemeanor Pre-Trial Diversion Expunctions.  In Dallas County, DA Creuzot has determined that “… [f]or those people who have successfully completed our pre-trial diversion program, a conditional dismissal or memo agreement, we will now be proactively expunging the arrest instead of the previous policy of waiting two years for the statute of limitations to run.”

Official 2019 Expunction Policy of the Dallas County District Attorney’s Office

The District Attorney’s Office has issued its formal policy on expunction in accordance with D.A. Creuzot’s reform decision.

Here is the new prosecutorial policy for Dallas County, effective January 1, 2019:

Early Dismissal if Signed Waiver. Before the running of the statute of limitations, the District Attorney’s Office will agree to cases involving a Conditional Dismissal IF the Petitioner signs a waiver saying that Dallas County may keep (a) his/her name, (b) date of birth, (c) offense, and (d) State identification number.

No Waiver, No Early Dismissal. If the waiver is not signed, then the DA will not agree to the expunction until the statute of limitations has run.

Exception. If the person was arrested for an offense that is not eligible for expunction, then the DA will not agree to any conditional dismissal or expunction.

Note:  The District Attorney has announced that this policy will apply retroactively for any conditional dismissal.

Special Circumstance: Marijuana and THC First Timers (Effective February 7, 2019)

Limited Expunction

For individuals who are arrested for possession of marijuana and/or possession of tetrahydrocannabinol (THC), and have never before been arrested or charged for these drug crimes (i.e., they are first-time offenders), then the new Dallas County District Attorney policy is to agree to a limited expunction, pursuant to Texas Code of Criminal Procedure Art. 55.01(a)(2)(A)(i).  This applies to first-time offenders that are arrested but not prosecuted for possession of marijuana and/or possession of tetrahydrocannabinol (THC) pursuant to the new reform policies.

If an indictment or information is filed against a first-time marijuana or THC offender, and the case is then dismissed, the Dallas County DA will agree to a limited expunction before the statute of limitations has passed (i.e., “early expunction”) if the accused signs a waiver allowing Dallas County to keep his/her name, date of birth, offense, and State identification number.

Record Retention

The DA’s Office and the local police will both retain records on these arrested first-time offenders as part of this agreement to a limited expunction.

Timelines

In these cases, limited expunctions will be available with the Dallas County DA only after a certain amount of time has passed since the person’s arrest.  In other words, after the following timelines have passed (from the date of arrest), the person is eligible for the limited expunction under this new reform policy:

• • • 3 years on any felony;
    • 1 year on Class A or B misdemeanors (no felony in same transaction);
    • 6 months on Class C misdemeanors (no felony in same transaction).

No Change in Expunction Policy for Family Violence Cases

There is an exception to the new District Attorney Reform Policy.  The Dallas County District Attorney’s Office will not agree to early expunction (i.e., expunction before running of the statute of limitations) in any Family Violence matter.  This runs the gamut – including cases that were initially arrested/charged as family violence but got knocked down to lesser offenses as well as any Class C misdemeanor charges.

Expunction and the Texas Code of Criminal Procedure

Expunction has been considered by the Texas Legislature, with the result being Texas Code Crim. Proc. Art. 55.01, et seq.  In fact, one entire chapter of the Texas Code of Criminal Procedure, Chapter 55, is dedicated to the expunction process.

While the Dallas County District Attorney can announce internal reforms within his office, which must be followed by all the prosecutors who work for him, his power does not extend past the confines of his office or the boundary of the county line.  All expunctions in the State of Texas still have to meet the legislative conditions enacted in the Code.

What is Expunction? 

Essentially, it is the legal process that allows someone to remove all the information about an arrest, charge, prosecution, or conviction from their permanent records.  We have discussed the process in detail; see:

• Texas Expunction of Criminal Records;
• Expunge your Texas Criminal Record; and
• Free Expungement Or Seal Of Texas Criminal Records (Forms And More) Because Everyone Deserves A Second Chance.

Criminal Defense and 2019 Expunction in Dallas County

The state expunction laws apply in different types of criminal cases.  The legal right to expunction relates to a variety of felonies and misdemeanors, allowing expunction as long as the statutory criteria are met.  Texas Code Crim. Proc. Art. 55.01(a).

From a criminal defense standpoint, the thing to keep in mind is that any straight dismissal will make the defendant eligible for an expunction — as long as there’s no other case arising out of the same transaction which isn’t eligible for expunction.

After that hurdle is jumped, the only other variable to be considered regarding expunction is the time frame.  Pursuant to Texas Code Crim. Proc. Art. 55.01(a)(2)(B), the petitioner must wait for the applicable statute of limitations (“SOL”) period to expire before the petitioner is eligible to exert his right to expunction.

Limitations Time Period Computation

Determining the limitations period that applies in a case means referencing another section of the Code, i.e., Texas Code Crim. Proc. Art. 12.01, which governs the applicable SOL periods.

Under this statute, the default for all misdemeanors is two years.  The default for all felonies is three years.  Of course, there are many enumerated exceptions to these two general rules; they are set out in Article 12.01 and include no limitation period for the crimes of murder and manslaughter, for example.

The expunction laws do have a couple of exceptions to waiting for limitations to expire.  One has to do with unfiled cases. Texas Code Crim. Proc. Art. 55.01(a)(2)(A).  The other exception has to do with court approved pre-trial diversion programs and veteran’s court programs. Texas Code Crim. Proc. Art. 55.01(a)(2)(A)(ii).

Pre-Trial Diversion Programs in Dallas County

Since there is no solid Code definition here, different Texas District Attorney Offices have different ways of interpreting language regarding pre-trial division programs as referenced in the expunction laws.

Judge Creuzot has made it very simple and clear to understand how his office interprets “pre-trial diversion” language insofar as Dallas County.

Marijuana or THC Arrests: First Timers Need to Understand Implications of New Policy

Because there’s no solid Code definition, it is important to know for everyone to understand that someone who is arrested for a first time marijuana misdemeanor or state jail felony THC (tetrahydrocannabinol) possession needs to get the arrest and charge off of their record as soon as they possibly can.  This is especially true for those folk whose long-term future is at stake, such as:

• young people in college,
• those applying for state licenses,
• applicants to graduate school, and
• anyone looking for a new career opportunity.

Why?  Just because their case gets dismissed, it does not mean everything goes away.  The dismissal doesn’t mean anything in terms of their criminal record.  They still have an arrest record.

Once you are arrested, you have a permanent criminal record unless it is expunged.

Without an expunction under Texas Code Crim. Proc. Art. 55.01(a), their best case scenario will be they have an arrest, a charge, and a dismissal.  That’s not going to help these folks very much when they go to apply for a job, or seek scholarship funds, or try to get professionally licensed by the state.  That arrest record will come back to haunt them.

The solution is expunction.  This will result in the destruction of all records including arrest, police reports, prosecution reports, and all court documents.

My Personal Criminal Defense Standards for Clients and Expunction

Personally, getting those records cleared away and freeing the future of my clients is my goal in virtually every case I undertake.  Expunction is what I want for all my clients.

In fact, getting that expunction is almost always included in my attorney fee contract, because I believe that a lawyer should not charge extra for an expunction.  There are times it is referenced in my legal representation agreement.  However, if it is in my contract, my client only pays for the district clerk filing fee for the expunction.  That’s it.  I take care of the rest.

Of course, not everyone can have their record expunged.  And I can’t promise that I’m going to do this on every case.  But I do believe it should be the objective in most cases I handle, and I am a fervent believer in the right to expunction for every citizen insofar as the current expunction laws will allow.  

That’s why I’ve compiled and published “Free Expungement Or Seal Of Texas Criminal Records (Forms And More) Because Everyone Deserves A Second Chance.”  It’s free online information for anyone in the State of Texas who is interested in clearing their criminal records off the books.

Also see:

• Appeals & Expungement; and
• Got Marijuana? What You Need To Know About the Dallas “Cite And Release” Rule.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”