EXPUNCTION PROCEDURES

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Filing Requirements

Filing for identity theft expunction under subsection (d) is very different from petitioning for any other type of expunction. Other types of expunction petitions are handled together in the statute, but identity theft expunctions have their own section. Article 55.02, Section 2A deals exclusively with identity theft expunctions.

A petition for identity theft expunctions may be filed in the country in which the petitioner resides, regardless of where the offense or arrest occurred. It must be verified and include all the same identifying information as other expunctions contain.

A petition for identity theft expunction must also include the petitioner’s authenticated fingerprint records, and a statement that he was not the person arrested and did not give consent for the arrested person to use his information. After all of the required information is submitted to the attorney representing the State, the responsibility shifts from the petitioner and to the State.

Applying for an Expunction

A petition for expunction may be filed in the county in which either the petioner was arrested or the offense was alleged to have occurred. The petition may be filed only in district court.

Certain information must be provided whenever a person is applying for an expunction. This information allows the agencies and the court to determine the petition’s eligibly for an expunction and ensures the agencies can locate all of the petitioner’s eligibility for an expunction and ensures the agencies can locate all of the petitioner’s information once the order is signed.

If any of the required information is not applicable, the petition must state why it is not included. A close relative of a deceased person who is otherwise entitled to an expunction may apply on behalf of the deceased person for an expunction.

The petition must include a list of all agencies the petitioner believes may have records or files subject to an expunction. But not all agencies included by the petitioner may be required to expunge records. All government agencies and private agencies that purchase criminal history information are subject to expunction orders. (Includes background check agencies) Copies must be provided to all respondents named in the petition. Applicable government agencies generally include the district or county clerk, and DPS.

Special Procedure For Acquittals

An acquittal expunction merely requires the petitioner to provide the court with all the necessary identifying information and give notice to the State. The trial must then enter the expunction order with 30 days of the acquittal. This is not a limitation of the right to an expunction, but merely a means of expediting the order. A person acquitted may file for an expunction more than 30 days after the verdict, but he may be subject tot ordinary filing fees and the order is not expedited.

Responding To An Expunction Petition

A petitioner has the burden of proof in establishing he is entitled to an expunction. If any of the respondent’s named in the petition contest the petitioner’s rights to an expunction, the trial court must hold a hearing. All respondents must be given at least 3o days voice of any hearing. Respondent’s may be notified by certified mail, secure electronic mail, or fax. Notification is mandatory. If an agency appeals the order because it did not receive proper notice, the trial court must set aside the entire order as it applies to all respondents, not merely the agency that did not receive notice.

Appealing An Expunction Order

If the trial court grants petition for expunction, any of the respondents named in the petition has the right to appeal the decision. Agencies not named in the petition are not entitled to appeal. But if any respondent succeeds on appeal in having the expunction order overturned, it is overturned with regard to all agencies regardless of which one appealed. The petitioner is entitled to refile his petition if it is overturned on appeal.

Generally, only respondents that appeared at a hearing or filed an answer are entitled to appear, but agencies that do not participate may in some circumstances appeal throughout a writ of error. Writs of error must be brought within six months of the date of judgement by a party that did not participate in trial, and error must be apparent on the face of the record.