Expunction of Deferred Adjudication

Facts:

A defendant pled guilty to a felony offense and received deferred adjudication for a term of ten years. But after six years, the court terminated the defendant's deferred adjudication and released him without any further conditions.

Issue:

Can the defendant's criminal record be expunged of the felony offense for which he received deferred adjudication?

Short Answer:

No. The purpose of article 55.01 of the Code of Criminal Procedure is to expunge the records of individuals who have been wrongfully arrested or charged for an offense, not to expunge the records of those who are arrested, plead guilty to an offense, and receive some form of court-ordered probation.

Discussion:

The Code of Criminal Procedure authorizes the expunction of criminal records of certain individuals. Tex. Code Crim. Proc. Ann. art. 51.01 (Vernon 2006). The requirements to expunge a criminal record are found in article 51.01 of the Code of Criminal Appeals:

a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

And a person who successfully completes deferred adjudication, without more, is not entitled to the expunction of her criminal records because deferred adjudication qualifies as court ordered probation under article 51.01. In the Matter of the Expunction of Ramirez, 143 S.W.3d 856, 858 (Tex. App.---El Paso 2004, no pet.); Tex. Dept. of Public Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.---Corpus Christi 1997, no pet.); Harris County District Attorney's Office v. D.W.B., 860 S.W.2d 719, 721 (Tex. App.---Houston [1st Dist.] 1993, no pet.); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.---Houston [14th Dist.] 1991, no pet.). In Bulter, Bulter pleaded guilty to a third degree felony, received deferred adjudication, successfully completed the terms of deferred adjudication, and moved to have his record expunged of the felony offense. 941 S.W.2d at 319. The court held that deferred adjudication qualifies as court ordered probation under article 42.12 of the Code of Criminal Procedure, and therefore, Butler could not satisfy the requirements of article 55.01. Id. at 321. Because Butler could not satisfy the requirements of article 55.01, the court refused to expunge his record of the felony offense. Id.

Like Butler, the defendant pleaded guilty to a felony offense, received deferred adjudication, and successfully completed the terms of deferred adjudication. But deferred adjudication qualifies as court ordered probation under article 42.12. Because deferred adjudication qualifies as court ordered probation, the defendant does not satisfy the requirements of article 55.01. Therefore, he is not entitled to have his record expunged of the offense for which he received deferred adjudication.