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Some Evidence Required for Expunction of Arrest Record

Posted by Russell D. Hunt | Jan 06, 2017 | 0 Comments

Expunctions erase records of wrongful arrest

The Waco court of appeals this week threw out an expunction that had been granted despite the fact that the DPS didn't even show up to the hearing.

In this case, the applicant had filed the appropriate request for expunction, and the DA was present during the hearing and stated that the DA had no objection to the court's granting the expunction.  However, the DPS had filed an objection to the expunction.  When the DPS did not show up for the hearing, the judge granted the applicant's request and ordered the arrest expunged.  In many courts the judge will approve an expunction without the applicant even attending the hearing.

Here's what the court of appeals wrote regarding their decision in this particular case:

Because Appellee had the burden in the trial court to produce evidence that he was entitled to an expunction but the record only demonstrates that an assistant district attorney advised the trial court that he has no objection to the expunction, there is no evidence in the record to support the trial court's finding and the expunction order is reversed.  Ex parte RJF.

It is interesting to note that the court did not find the applicant was not entitled to the expunction, just that he did not appropriately prove it up.

What's the lesson from this case?  In the (unlikely) event that a party to the expunction objects, the client should appear at the hearing and be prepared to testify that the facts in the petition are true.  this un-objected to testimony will prove his eligibility for the expunction.  If the DA does not object and the DPS doesn't show up, this is a foolproof way to bulletproof the granted expunction order.

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