As explained in our previous blogs, expunctions are intended to give relief to innocent people who seek to clean their name. This category of expunction is the most complicated and is used for people who are indicted and subsequently dismissed, cases that are no-billed by the grand jury, cases refused by the prosecutor or never filed by law enforcement.
To qualify you must first meet three criteria:
- You must have been released and the case can no longer be pending;
- The offense can not conclude with a conviction; and
- There could not have been any community supervision for any offense out of the arrest (other than a class C misdemeanor).
After these three criteria are met, you must show that your case fits into one of the following categories:
- The statute of limitations has run;
- The waiting period has passed; or
- The case was dismissed for certain reasons.
These categories are in place to establish that no portion of the case is still pending or could be reopened. They are for issues such as a mistake in the evidence or a mistaken identity. In some instances it appears that the court still has discretion to deny the expunction.
Make sure you have a professional review the documentation prior to filing the paperwork.
When I was 8 years old, my father hurt his back. He had herniated discs at two different levels. He declined surgery and chose to treat his injury with physical therapy and traction.
After a year he was still dealing with a lot of radicular pain and stiffness. In one of the programs, they tried to help him understand the psychological component of his injury. He misunderstood and felt they were telling him that the pain was in his head. He didn’t understand whenever a person undergoes a significant injury, there is a psychological component that also needs to be addressed. They were trying to help him to better cope with the pain. With the help of the program, he was able to return to work until he retired at the age of 78.
multidisciplinary studies of adults sustaining moderate to severe injuries found that injury-related mental distress on the subtle outcomes of patient productivity, general health, and satisfaction affect functional outcomes. Multidisciplinary Chronic Pain Management (CPM) Programs coordinate the physical and psychological recover to allow for a quicker and more complete recovery of the injured worker. Like many programs, the more the injured worker puts into the program, the more they will likely get out of it.
There is no miracle cure that will take all of a person’s pain away. However, CPM Programs give the injured worker tools to help them cope with their injury and how to properly use their body to avoid further injury. This gives a greater chance that they will be able to return to gainful employment.
Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning. Unlike a divorce, an annulment is a finding that you were never married to that person.
Annulments are saved for special purposes when the state believes at least one of the parties was unable to consent to the marriage contract.
What situations qualify a marriage for an annulment:
- Under age married without parental consent. 16 years of age or older but under 18 years of age that occurred without parental consent;
- Drunk or high. Under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage;
- Impotent. Either party, for physical or mental reasons, was permanently impotent at the time of the marriage
- Fraud. The other party used fraud, duress, or force to induce the petitioner to enter into the marriage;
- Mental Incapacity. Mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect;
- Recent Divorce. The other party was divorced from a third party within the 30-day period preceding the date of the marriage ceremony; and
- Untimely License Issues. A marriage ceremony may not take place during the 72-hour period immediately following the issuance of the marriage license.
All of the above categories have different requirements to fully qualify for an annulment. Please talk to an attorney if you feel that you meet one of the above classifications.
The first two areas of expunction we are going to discuss are after an acquittal and pardons. A person who has been tried for an offense and was either acquitted or subsequently pardoned is eligible for an expunction. They are both areas which will require that the defendant be acquitted or pardoned for the entire criminal act and not just one element of the said act.
An acquittal is when the evidence in a defendant’s case does not prove guilt beyond a reasonable doubt or they received a verdict of not guilty. This may happen either at the trial court level or one of the appellate courts.
If it happens at the appellate level, it must be an acquittal and not just a reversal. The court will generally state in their findings that there is a finding of legal insufficiency.
Unlike other areas for expunction, the statute only states that a person may receive an expunction for an appellate acquittal. Therefore, it appears that the trial court may still have the authority to deny an expunction even if they received an acquittal on appeal.
A pardon is a form of clemency which give gives a person back certain rights which many felons lose. A person may file an application to receive a pardon from the governor of Texas. It will go through the state board of Pardons and Paroles.
If a person has been pardoned or otherwise received relief on the basis of actual innocence, they are entitled to expunction. However, the order must state on its face that it is granted for actual innocence to allow the exception.
If you feel that you meet either of these classifications, do not hesitate to contact the attorney to review your case.
In Texas just over 14% of drivers do not carry auto insurance. If you are caught driving without insurance, you will receive a fine plus an annual surcharge. Even for a first time offense, the charges will be over $1,000, and they increase each time. It is cheaper to carry at least a minimum liability policy.
In Texas, the minimum liability policy will cover up to $30,000 bodily injury per person, up to a total of $60,000 and will provide coverage for property damage up to $25.000. Some drivers carry larger policies. But, these are the minimum standards required by law.
If you have been in a serious accident, you will quickly discover that these minimum policies do not cover the cost of you vehicle, let alone you medical expenses and losses. Additionally, most people do not have other assets or money which you can recover in a lawsuit. They are what we call judgment proof.
To protect yourself, we advise that you carry insurance to protect you and your passengers, from not only the uninsured drivers, but the under insured drivers out there. Both Personal Injury Protection (PIP) and Un/Under Insured Motorist are coverage worth having on your insurance policy. These policies are in place to protect you and your passengers and not the other vehicle.
We get a lot of phone calls from people who want to get an expunction of their criminal records. What most of them really want is to have their criminal records sealed. The expunction statutes were created to allow people who were wrongly arrested or charged an opportunity to have all the government records of their arrest and subsequent prosecution destroyed.
To qualify for an expunction, the person must have been arrested and not merely investigated. This does not mean that they have actually been taken into custody by the police, but that they have submitted to the authority of the courts.
There are four general categories for expunction:
- Acquittals and pardons;
- Dismissals and no-bills;
- Discretionary expunctions; and
- Identity theft.
Each of these has its own rules for determining if someone is entitled to an expunction. We will discuss each individually in future blogs. There are also other categories for which a person may get an expunction not included in Chapter 55 of the Texas Code Procedure.
A person is not entitled to an expunction if the person was arrested for contempt of court, a writ of attachment or violation of parole. The expunction must be for a new criminal charge. Also they are not able to get an expunction if they are acquitted of a charge but were convicted or remain subject to prosecution for any charge arising out of the same criminal incident.
If you believe that you may be eligible for an expunction, visit an attorney for assistance.
If you are undergoing a divorce in Texas, one of the primary issues that must be determined is how your property will be divided. That does not mean that all property will be divided. Some of your property may be determined to be your separate property and will remain your sole property. The basics on how to determine the difference between community and separate property are below.
A person’s separate property consists of property owned or claimed before the marriage; property acquired by the person during the marriage by gift, devise or descent; and the recovery for personal injuries sustained during the marriage (except for loss of earning capacity). If one spouse makes a gift of property to the other spouse, the gift is presumed to be separate property and will include all the income and property that may arise from that property.
Community property consists of property acquired during the marriage that is not deemed to be separate property. At the time of a divorce, all property is presumed to be community property unless it is established as separate property by clear and convincing evidence.
It is always best to try and work the division of property out with your spouse. However, if you are going through a divorce, make sure that you have an expert review the status of all your property prior to agreeing to any division. This way you will understand what position you are in.