Criminal defense question about sealing or expunging a record

Asked almost 6 years ago - Laredo, TX

is there anything someone can do to either expunge or seal a record with the charge of criminal mischief and 2 counts of agg. assualt with a deadly weapon F2. under the circumstances.
the criminal mischief charged happened in 1997 and the felony charge happened in 2002 against the persons parents.. parents dropped charges and state picked charges back up. they served deffered adjudicaton and afterword everything was dismissed.

Attorney answers (2)

  1. Herman Martinez

    Pro

    Contributor Level 14

    1

    Lawyer agrees

    Answered . Under Section 411.081 of the Government Code, anyone who has ever committed the offense of family violence (including as the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure.

    Family violence is defined as:

    1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself

    2) Physical injury by a member of a family or household toward a child of the family or household that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm

    3) Sexual conduct by a member of a family or household toward a child of the family or household harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code

    4) Conduct by a by a member of a family or household toward a child of the family or household compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code; or

    5) Dating violence, e.g. an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

    Therefore, it does not look like from the facts you have stated that you are eligible for an expungement or "sealing your record." The only available alternative is to seek a pardon from the Govenor of Texas. Nevertheless, you should contact a local criminal attorney to help you further.

  2. Cynthia Russell Henley

    Contributor Level 20

    Answered . Herman is correct about the assault cases. And, it does not matter whether there was an affirmative finding of family violence at the time. If the facts of the case support a finding of family violence, then the cases cannot be sealed. As for the misdemeanor case, if you got deferred for it and successfully served it out, you might be able to seal it, but it really would not be helpful with the two felonies remaining on your record.

    (Sealing of a record after serving out a deferred adjudication is a fairly recent law and very, very helpful. However, the reason that assaults involving family violence are excluded is to protect family members from violent family members who repeat. If one gets even a deferred for family violence and then is charged with another family violence case [the timing does not matter], the second case is a felony regardless of the facts of the first one.)

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